THE 


MUNICIPAL  CODE 


OF  OHIO 


INCLUDING 

THE  ACT  OF  OCTOBER  22  1902  WITH  ALL  AMENDMENTS 
AND  SUPPLEMENTS  THERETO  AND  ALL  STAT- 
UTES  RELATING  TO    MUNICIPAL    CORPO- 
RATIONS TOGETHER  WITH  COMPLETE 
ANNOTATIONS  OF  DECISIONS  AND 
ALL  NECESSARY  FORMS 


BY 


WADE  H.  ELLIS,  LL.D. 

Attorney  General  of  Ohio,  Professor  of  Law  Ohio  State  Unhrersity 


THIRD  EDITION 

REVISED  BY 

CHALLEN  B.  ELLIS 

Of  the  Cincinnati  Bar 


CINCINNATI 

THE  W.   H.   ANDERSON   CO. 

LAW  BOOK  PUBLISHERS 

1907 


C"1ERAL 


COPYRIGHT 
1905 

THE  W.  H.  ANDERSON  00, 
Cincinnati,  O 


COPYRIGHT 

1906 

THE  W.  H.  ANDERSON"  OO, 

Cincinnati,  O. 


PREFACE  TO  THIRD  EDITION 


In  this  edition  of  the  Ohio  Municipal  Code,  there  are  con- 
tained all  the  changes  in  and  additions  to  the  municipal  code 
proper  and  the  related  statutes,  made  by  the  General  Assem- 
bly at  its  session  in  1906.  The  forms  and  orders  of  procedure 
have  been  changed,  where  necessary,  to  make  them  conform  to 
the  new  laws.  The  annotations  have  been  revised  and  brought 
up  to  date  by  the  addition  of  all  the  decisions  relating  to  mu- 
nicipal law  rendered  since  the  publication  of  the  last  edition, 
and  many  of  the  notes  have  been  entirely  rewritten. 

Cincinnati,  Ohio,  November   1,  1906. 


154939 


PREFACE  TO  FIRST  EDITION. 


The  purpose  of  this  publication  is  to  present  in  convenient 
form  all  the  laws  of  Ohio  affecting  municipal  corporations,  to- 
gether with  annotations  of  the  decisions  thereon,  compiled  to 
April  lst>  1903,  and  all  forms  of  ordinances,  resolutions  and 
procedure  in  conformity  with  the  statutes  as  they  exist  since 
the  enactment  of  the  new  municipal  code. 

Part  I.  consists  of  the  new  code  proper,  and  all  sections  of 
the  Revised  Statutes  re-enacted  by  it,  incorporated  at  the  places 
where  such  statutes  should  appear  if  made  a  part  of  the  code 
itself.  The  sections  of  the  new  code  are  double  leaded  and 
those  of  the  old  statutes  are  set  in  solid  type.  The  sectional 
numbers  at  the  top  of  each  page  in  Part  I  refer  to  the  sections 
of  the  new  code. 

Part  II.  consists  of  all  related  statutes  on  the  subject  of 
municipal  corporations  not  incorporated  in  the  new  code,  nor 
expressly  repealed  by  it.  Many  of  these  are  doubtless  repealed 
by  implication;  many  others  are  unconstitutional,  being  of 
special  application,  but  they  are  nevertheless  contained  herein 
in  order  that  the  entire  body  of  statutes  affecting  the  munici- 
palities of  the  state  may  be  found  together. 

The  desirability  of  presenting  this  work  for  such  service  as  it 
may  render  to  the  new  city  and  village  officials  and  to  the  bar 
of  the  state,  at  or  before  the  time  when  the  new  municipal  code 
goes  into  effect,  has  necessitated  much  haste  in  its  preparation, 
and  this  fact  is  relied  upon  to  secure  a  pardon  for  errors  and 
imperfections. 

In  compiling  this  work  the  editor  has  been  assisted  by  Mr. 
Ellis  G.  Kinkead  and  Mr.  Challen  B.  Ellis,  of  the  Cincinnati 
bar. 


/ 


ABBREVIATIONS. 


B ,  #  Weekly  Law  Bulletin,  Ohio  Law  Bulletin. 

C.  C Ohio  Circuit  Court  Reports. 

C.  C.  (N.  S.) Ohio  Circuit  Court  Reports  (New  Series) . 

C.  D Ohio  Circuit  Decisions. 

Clev Cleveland  Law  Reporter. 

C.  S.  C.  R Cincinnati  Superior  Court  Reporter. 

D Disney's  Cincinnati  Superior  Court  Reports. 

Dayton    Dayton  Term  Reports  Digested. 

Dec Ohio  Decisions  Nisi  Prius. 

Dec.    (Re) Ohio  Decisions  (Reprint). 

Fed Federal  Reporter. 

H.   . Handy's  Cincinnati  Superior  Court  Reports. 

Gaz Weekly  Law  Gazette. 

Goebel GoebePs  Probate  Reports. 

N.    P Ohio  Nisi  Prius  Reports. 

N.  P.    (N.  S.) Ohio  Nisi  Prius  Reports  (New  Series) . 

O Ohio  Reports. 

O.  F.  D Ohio  Federal  Decisions. 

O.  L.  R Ohio  Law  Reporter. 

0.    S Ohio  State  Reports. 

0.  S.  C.  D Ohio  Supreme  Court  Decisions,  Unreported. 

Rec American  Law  Record. 

Tappan    Tappan's  Reports. 

U.  S United  States  Reports. 

W.  L.  J Western  Law  Journal. 

W.  L.  M Western  Law  Monthly. 

Wright    Wright's  Ohio  Supreme  Court  Reports. 


/ 

TABLE  OF  CONTENTS. 


PAGE 

INTRODUCTION    xi 

PART  I. 

THE   NEW   CODE  PROPER 
with  sections  of  the  Revised  Statutes  re-enacted  therein. 

I.     CLASSIFICATION  OF  MUNICIPALITIES 1 

1.  General  provisions    1 

2.  Creation  and  incorporation  of  villages 9 

3.  Annexation  and  detachment  of  territory 25 

(Subdivision  1.)      Annexation  of  territory  on  appli- 
cation of  its  citizens   25 

(Subdivision  2.)      Annexation  of  territory  on  appli- 
cation of  a  corporation 31 

(Subdivision  3.)      Annexation  of  one  municipal  cor- 
poration to   another    35 

(Subdivision  4.)      Detachment  of  territory  from  mu- 
nicipal   corporations    40 

II.     POWERS  OF  MUNICIPALITIES 43 

1.  General  powers   43 

( a )      Enumeration   of  general   powers 44 

( 6 )     Public  peace   64 

(c)  Nuisances     65 

(d)  Cemeteries     67 

(e)  Licenses    73 

2.  Special   powers    •• 80 

(First)      Appropriation    of    property 80 

(Second)      Sale  or  lease  of  property 103 

(Third)      Streets  and  their   use 112 

(a)  Control  of  streets 112 

( b )  Dedication   of  streets 127 

(c)  Vacation  of  streets  by  council 130 

(d)  Vacation  of  streets  by  court 134 

(e)  Labor  upon   streets 136 

(f)  Street   railways    142 

(Fourth)     Taxation 157 

V 


VI  CONTENTS. 

II.    POWERS  OF  MUNICIPALITIES  —  Continued.  page 

(a)     Levy  of  taxes;    restrictions 157 

( 6 )     Tax  commission  178 

(Fifth)     Assessments     179 

(a)     Assessments  in  general 179 

( 6 )     Damages  to  abutting  property 207 

(c)  Improvement  contracts    221 

(d)  Improvements   on   petition 222 

(e)  Assessments  od  municipal  property 229 

(f)  Second  establishment  of  grade 230 

(9)     Sprinkling  and  cleaning 231 

(h)      Hearing  on  assessments  by  benefits 233 

(i)      Sidewalks,  curbing  and  gutters 236 

(/ )     Sewers   244 

(k)     Miscellaneous    provisions 258 

(Sixth )      Power    to    borrow   money 274 

(a)      General  provisions    274 

( 6 )      Longworth    bond    act 287 

(Seventh)     Sinking  fund    297 

III.     ORGANIZATION   OF  CITIES 303 

1.  Legislative    303 

2.  Executive    328 

(a)     Chief  officers    330 

Mayor    330 

President  of  council 332 

Auditor    333 

Treasurer     337 

Solicitor    340 

(6)      Department  of  public  service 350 

( 1 )  General    administrative    powers 350 

( 2 )  Houses  of  refuge 352 

(3)  City  prisons  and  station  houses 362 

(4)  Workhouses    363 

(5)  Hospitals 365 

(6)  Infirmaries   365 

( 7 )  Platting  commission 367 

(8)  Contracts    by     the     Board    of    Public 

Service     370 

*  (9)      Employes    in    department    of     public 

service    382 

(o)     Department  of  public  safety 383 

( 1 )  Organization  and  general  powers 383 

(2)  Police,    fire    and   sanitary   police   pen- 

sions funds  392 

(3)  Merit   system   in    police   and    fire    de- 

partments       404 

{d)     Board   of   health 417 

3.  Judicial 441 

IV.     ORGANIZATION  OF  VILLAGES 444 

1.     Legislative    ' 444 


CONTENTS.  VU 

IV.     ORGANIZATION  OF  VILLAGES  —  Continued.  page 

2.  Executive    / . .   446 

(a)  Chief    officers „ 446 

Mayor    448 

Clerk    451 

Treasurer    , 455 

Street  commissioner    455 

( b )  Care  of  parks  and  institutions 456 

(c)  Trustees   of   public   affairs 457 

(d)  Police  and  fire   departments 469 

3.  Judicial    475 

V.  MISCELLANEOUS  PROVISIONS   -.  477 

1.  Saving  of  rights  under  previous  laws 477 

2.  Certain  acts  for  pending  improvements 481 

3.  Municipal  universities  485 

4.  Municipal  libraries  and  trustees 491 

5.  Tax  authorized  for  use  of  art  gallery 492 

6.  Tax  authorized  for  use  of  hospital 492a 

7.  Parks  and  hospitals  founded  by  gift 493 

VI.  ELECTION,    APPOINTMENT    AND   REMOVAL   OF   OF- 

•      FICERS  '  ; 501 


PART  II. 

RELATED   STATUTES 
not  incorporated  in,  nor  expressly  repealed  by,  the  new  code. 

I.     OFFICERS    531 

1.  General  provisions    531 

2.  Provisions  as  to  certain  officers 539b 

Council    539b 

Assessors    540 

County  treasurer  having  charge  of  city  and  school 

funds 541 

Mayor 542 

Clerk    544 

Treasurer    544 

Auditor    547 

Solicitor 548 

Street  commissioner,   etc 550 

Sealer  of  weights  and  measures 550 

Fire  and  police  officers 553 

3.  Election  and  removal  of  officers 556 

4.  Uniform  accounting  by  officers 560 

5.  Provision  as  to  contracts  by  officers 564 

II.     JUDICIAL    566 

1.     Police  court   566 

(a)  Jurisdiction  of  court  and  judge 566 

(b)  Clerk  of  police  court 576 


Viii  CONTENTS. 

II.     JUDICIAL  —  Continued.  page 

(c)  Prosecuting  attorney    578 

(d)  Police  judicial  districts  in  Cleveland 579 

2.  Police  power  of  mayor,  police  justice,  etc 580 

(a)  In  cities  except  of  the  first  class 580 

( b )  In  villages    582 

(c)  In  hamlets    585 

(d)  Further  provisions   concerning   the  powers  of 

the  mayor  and  other  officers  in   cities  and 
villages  in  matters  of  a   criminal  or  police 

nature    586 

(e)  Jurisdiction  in  cases  of  food  adulteration,  etc.  588 

3.  Fines   and   imprisonment 590 

4.  Bills    of    exceptions 592 

III.  BOARD  OF  HEALTH 593 

IV.  CHARITABLE     AND     REFORMATORY     INSTITUTIONS; 

SOLDIERS'  RELIEF  605 

1.  General    provisions     605 

2.  Workhouses    611 

General  provisions   611 

Joint   city    and    county   workhouse    in    Muskingum 

county     616 

Agreement  for  use  of  workhouse 624 

3.  Hospitals    626 

4.  Infirmaries    633 

5.  Children's  homes 636 

6.  Soldiers'  relief 639 

V.     WATER  WORKS  644 

Cincinnati  Water  Works  Act , 646 

VI.     LIGHTING     AND     WATER     COMPANIES;     MUNICIPAL 

LIGHTING   PLANTS    656 

VII.     GAS  AND  WATER  COMPANIES   668 

VIII.     LIGHTING  OF   RAILWAYS  AND  BRIDGES 674 

IX.  STEAM  RAILROADS  IN  MUNICIPAL  LIMITS 679 

1.  General  regulations    679 

2.  Abolishing  grade  crossings 691 

3.  Union  depot  companies 695 

4.  Railroads   owned   by   municipalities 696 

X.  STREET  RAILWAYS  IN  MUNICIPAL  LIMITS;  and  here- 

in change  of  route   law,  inclined  plane  railways  and 

interurban  railway  terminals  698 

XI.     MAGNETIC    TELEGRAPH    COMPANIES;    WIRES    AND 

SUBWAYS 714 

XII.     MARKET   HOUSES    721 

1.  Market  house  companies  721 

2.  Cleveland  market  house  commission 722 

XIII.     CEMETERIES 1 724 

XIV.     PUBLIC  BUILDINGS  AND  INSPECTION  OF  BUILDINGS  732 

1.  Cleveland  city  hall  commission 732 

2.  Cleveland  group  plan  for  public  buildings 737 


XIV. 


XV. 


XVI. 


XVII. 
XVIII. 


XIX. 


XX. 


XXI. 
XXII. 


XXIII. 


CONTENTS.  IX 

PUBLIC  BUILDINGS,  ETC.—  Continued.  y   page 

3.  Joint  village  and  township  building '. . .   737a 

4.  Leasing  public  halls 738 

5.  Inspection  of  buildings 739 

PLATS    ■  •   744 

1.  Original   plats    744 

2.  Vacating  plats    748 

3.  Kevision  of  plats 751 

4.  Lost  or  destroyed  records 753 

STREETS   755 

1.  Streets  on  state  lands 755 

2.  County  bridges  and  roads  in  municipal  limits 755 

3.  Bridge,  turnpike  and  avenue  companies 763 

4.  Sewerage  companies  768 

5.  County  ditches  in  municipal  limits 769 

6.  Construction  and  repair  of  viaducts 770 

7.  Sprinkling  streets   772 

8.  Oiling  of  streets 772a 

9.  Nuisances   in   streets 772d 

10.  Miscellaneous  provisions  as  to  assessments 773 

11.  Construction  of  sidewalks  in  villages 774 

INJURIES  FROM    EXCAVATIONS 775 

LIBRARIES 777 

1.  In  certain  cities  and  villages 777 

2.  Appropriation  of  fines  to  law  libraries 781 

TAXATION  AND  EQUALIZATION 784 

1.  Taxation 784 

2.  Property  exempt  from  taxation 787 

3.  Equalization  of  taxes 789 

Board  of  review  for  municipal  corporations 789 

Annual  city  board  of  equalization 791 

Duties  and  powers  of  boards 799 

Decennial  city  board 801 

INTOXICATING  LIQUORS    802 

1.  Distribution  of  Dow  tax 802 

2.  Beal   local   option  law 803 

3.  Residence  district  option  law 809 

4.  Dance  halls,  etc 809i 

LICENSES     810 

HAMLETS 821 

1.  Trustees  of  hamlets 821 

2.  General  powers  of  hamlets 823 

3.  Other  officers  of  hamlets 824 

4.  Taxation  in  hamlets .    826 

MISCELLANEOUS  STATUTES 827 

1.  Certain  general  provisions 827 

2.  Advertising    828 

3.  Boundaries  of  townships  changed 830 

4.  Briers  and  Canada  thistles 831 

5.  Cigarette  tax  distribution 834 

6.  Curative  act 835 

7.  Flags  on  buildings    835 


X  CONTENTS. 

XXIII.     MISCELLANEOUS  STATUTES— Continued.  page 

8.  Militia;    mobs,   riots,   etc 836 

9.  Museum  and  park  companies 837 

10.  Name  of  municipality;  how  changed 838 

11.  Pounds    839 

12.  Societies  to  prevent  cruelty 841a 

13.  Soldiers'  monuments    842 

14.  Timepiece  on  public  building 844 

15.  Trusts  for  educational   purposes 844 

16.  Voting  on  submitted  questions 845 

APPENDIX  847 

I.    Governor's  message  847 

II.    Population  of  municipal  corporations  of  Ohio 850 

TABLE  OF  CASES  869 

TABLE  OP  SECTIONS  OF  REVISED  STATUTES,  AND  ACTS..   865 

INDEX    891 


ELLIS'S   ANNOTATED   OHIO 
MUNICIPAL  CODE. 


INTRODUCTION. 


SCOPE    OF   THE    NEW    CODE, 

WITH  A  STATEMENT  OF 

THE    CAUSES  AND    OCCASION 

OF   ITS    ENACTMENT. 


INTRODUCTION 


The  new  municipal  code  of  Ohio,  passed  by  the  General 
Assembly  in  extraordinary  session  on  October  22,  1902,  owes 
its  origin  to  two  sources:  First,  the  agitation  for  a  uniform 
government  for  the  cities  and  villages  of  the  state,  begun  by 
the  Ohio  State  Board  of  Commerce,  participated  in  by  the  State 
Bar  Association  and  other  organizations  in  1898,  and  resulting 
in  the  passage  of  an  act  by  the  Seventy-third  General  Assembly 
authorizing  the  appointment  of  a  municipal  code  commission; 
second,  the  decisions  of  the  Supreme  Court  in  June,  1902,  de- 
claring unconstitutional  the  then  existing  system  of  classifi- 
cation of  municipalities  as  it  had  grown  up  during  half  a 
century,  and  thus  at  one  stroke  shattering  the  foundations  upon 
which  rested  the  special  charters  of  nearly  every  city  in  the 
state. 

These  two  influences,  at  once  direct  and  potent,  may  well  be 
termed  the  proximate  cause  for  the  passage  of  the  new  munici- 
pal code. 

The  bar  of  the  state  and  many  eminent  judges  had  long 
been  of  the  opinion  that  the  classification  of  municipalities 
in  Ohio,  which  had  developed  under  the  constitution  of  1851, 
was  a  palpable  evasion  of  that  constitution,  if  not  a  violation 
of  its  express  language.  They  believed  that  the  intricate  system 
which  had  so  expanded  as  to  permit,  under  the  guise  of  classifi- 
cation, special  legislation  for  particular  cities,  not  only  offended 
Section  26  of  Article  II,  which  declares  that  all  laws  of  a  general 
nature  shall  have  uniform  operation  throughout  the  state,  and 
Section  1  of  Article  XIII,  which  forbids  the  legislature  to  pass 
any  special  act  conferring  corporate  powers,  but  violated  Sec- 
tion 6  of  Article  XIII,  which  ordains  that  the  General  As- 

xi 


Xii  INTRODUCTION. 

sembly  shall  provide  for  the  organization  of  cities  and  incorpo- 
rated villages  by  general  laws. 

Constitutional  limitations  are  seldom  invoked  to  determine 
moot  questions,  or  to  allay  the  apprehension  of  remote  evils. 
It  is  only  when  abuses  become  patent  and  oppressive  that  au- 
thority is  sought  to  destroy  them.     Special  legislation  in  Ohio 
would  probably  never  have  provoked  that  construction  of  the 
organic  law  of  the  state,  which  finally  accomplished  the  over- 
throw of  such  legislation,  if  the  power,  many  times  sanctioned 
by  the  Supreme  Court  during  the  period  of  fifty  years  follow- 
ing the  constitution  of  1851,  had  been  reasonably  and  mod- 
erately exercised.     But  every  succeeding  session  of  the  General 
Assembly  witnessed  new  refinements  in  the  art  of  isolating 
municipal   corporations   for   the  purpose    of  controlling  their 
affairs  by  special  laws.     Fourteen  grades  and  classes  of  cities 
and  villages  had  been  created,  and  nine  of  these  contained  each 
but  one  city.     The  result  was  that  every  municipality  in  the 
state  of  any  considerable  size,  was  governed  by  a  special  act. 
The  most  trifling  differences  in  population,  or  characteristics, 
were  made  to  justify  new  classifications.     When  the  number 
of  classes  and  grades  within  them  became  so  confusing  as  to 
discourage  further  amplification,  particular  cities  were  pointed 
out  by  such  differentiating  characteristics  as  that  they  contained 
a  navigable  stream,  or  were  on  the  west  side  of  a  river,  or 
embraced  within  their  limits   a  park  of  a  certain  name,   or 
offered  other  absurd  distinctions,  and  laws  were  solemnly  en- 
acted conferring  corporate  powers  upon   those  municipalities 
alone,  and  even  with  respect  to  matters  far  removed  from  the 
trivial   peculiarity   which   served    to   point   out   the    recipient 
of  the  power.     More  than  this,  the  legislature,  by  an  express 
enactment,  in  one  instance,  at  least,  evinced  a  determination 
to  prevent  the  advancement  of  municipalities  from  one  grade 
to  another,  under  the  operation  of  the  rule  of  population,  which 
the  Supreme  Court  had  sustained.     In  Section  1546  of  the 
Kevised  Statutes,  there  was  created  a  fourth  grade  of  the  first 
class  of  cities,  and  it  was  provided  that  "  cities  of  the  second 
class  which  hereafter  become  cities  of  the  first  class  "  should 


INTRODUCTION.  XI J 1 

constitute  the  fourth  grade  of  said  latter  class.  There  was 
never  any  city  of  the  fourth  grade  of  the  first  class,  and  the 
only  effect  of  the  establishment  of  such  a  grade  was  to  prevent 
cities  of  the  second  class  from  assuming  the  same  form  of 
government  as  other  cities  immediately  above  them,  when  they 
reached  the  same  population.  The  confusion  of  laws  thus  be- 
came so  bewildering  that  it  was  a  task  almost  impossible  of 
accomplishment  to  discover  the  rank  or  grade  of  particular 
cities.1  In  several  cases  this  was  the  sole  question  before  the 
Supreme  Court.  In  State  ex  rel.  v.  Wall,  47  O.  S.  499,  the 
opinion  begins  as  follows :  "  By  the  Court.  After  a  careful 
consideration  of  the  statutes  regulating  the  organization  of 
municipal  corporations  in  this  state,  we  are  convinced  that 
Columbus  is  a  city  of  the  first  grade,  second  class."  In  Hayes 
&  Sons  v.  Cleveland,  55  O.  S.  117,  the  entire  syllabus  is  as 
follows :  "  The  city  of  Cleveland  is  a  city  of  the  second  grade, 
first  class."  In  view  of  the  established  rule  of  the  Ohio  Su- 
preme Court  that  the  syllabus,  only,  contains  the  propositions 
decided,  the  waste  of  time  thus  required  to  find  the  object  upon 
which  an  act  is  to  operate,  which  might  better  be  devoted  to 
construing  the  act,  is  itself  a  sufficient  condemnation  of  the 
intricate  system  of  classification  that  had  grown  up  in  this 
state. 

The  evils  of  such  classification  became  more  real  as  its  pur- 
pose became  more  candid.  The  legislature  was  beginning  whol- 
ly to  usurp  the  duties  of  local  councils.  Home  rule  was  being 
completely  destroyed.  The  General  Assembly  determined  for 
Cleveland,  Cincinnati,  Columbus,  Toledo,  Dayton  and  nearly 
every  other  city  in  the  state,  as  well  as  for  particular  villages  of 
even  the  smallest  population,  what  officers  they  should  elect, 
what  salaries  they  should  pay  them,  what  parks,  streets  and 
hospitals  they  should  build  or  improve,  what  their  tax  limit 
should  be,  what  bonds  they  should  issue  and  what  powers  each 
and   every   department    of  the   municipal   government   should 

i  See  address,  "  The  Municipal  Situation  in  Ohio,"  read  before  the  League 
of  American  Municipalities,  at  Grand  Kapids,  Mich.,  August  28,  1902,  by 
Mr.  William  B.  Doyle,  of  Akron,  and  published  in  47  Ohio  Law  Bulletin, 
739. 


xiv  INTKODUCTION. 

possess.  Notes  of  warning  had  occasionally  been  sounded  by 
the  courts,  but  the  long  line  of  decisions  upholding  classifica- 
tion seemed  to  justify  the  sense  of  security  displayed  by  the 
advocates  of  special  laws  in  each  succeeding  session  of  the 
legislature.  At  last  the  protest  of  those  who  had  long  contended 
against  such  legislation  took  a  concrete  form.  A  number  of 
influential  commercial  bodies  of  the- state,  as  well  as  various 
organizations  devoted  to  the  cause  of  good  government,  took 
up  the  work  of  reform.  While  not  appreciating  so  clearly  the 
unconstitutionality  of  special  legislation,  they  fully  concurred 
with  the  bar  in  the  opinion  of  its  evil  consequences ;  and  it  would 
be  surprising,  indeed,  if  a  thing  which  the  lawyers  generally 
agreed  was  unconstitutional  and  the  people  generally  agreed 
was  wrong,  should  long  survive  such  an  agreement. 

As  a  result  of  this  agitation,  led  by*  the  State  Board  of  Com- 
merce, there  was  passed,  on  April  25,  1898,  "  an  act  to  authorize 
the  governor  to  appoint  a  commission  to  revise  the  municipal 
code  of  the  state,  and  making  appropriations  therefor."  (93 
O.  L.  302.)  This  act  provided  that  the  governor  should  ap- 
point two  persons  of  different  political  parties  who  should 
constitute  "  the  Municipal  Code  Commission,"  and  whose  duty 
it  was  made  to  prepare  a  bill  for  the  reorganization  of  cities 
and  villages  in  Ohio,  uniform  in  operation  throughout  the 
state,  and  separating  the  legislative  and  executive  departments 
of  such  municipalities.  The  act  further  provided  that  the 
commission  should  prepare  the  proposed  measure  in  such  form 
that  it  could  be  acted  upon  and  adopted  by  the  General  Assem- 
bly, and  should  also  prepare  an  explanation  and  analysis  there- 
of, which,  together  with  the  bill,  should  be  repv  rted  to  the 
governor  prior  to  the  convening  of  the  next  succeeding  legis- 
lature. The  Governor  was  authorized  to  submit  such  bill  to 
the  General  Assembly  with  such  recommendations  as  he  might 
deem  proper.  Governor  Asa  S.  Bushnell  appointed  as  mem- 
bers of  this  commission  Judge  David  F.  Pugh,  of  Columbus, 
and  Mr.  Edward  Kibler,  of  Newark.  This  commission  pre- 
pared a  bill  which  became  known  as  the  Pugh-Kibler  code, 
and  which  was  very  generally  discussed  throughout  the  state. 


INTRODUCTION.  XV 

The  chief  features  of  the  bill  as  originally  drafted  were  as 
follows:  It  divided  all  municipalities  into  cities  and  villages, 
making  cities  of  those  having  3,000  or  more  inhabitants,  and 
villages  of  the  remainder.  It  provided  for  cities  that  the 
mayor,  treasurer,  president  and  members  of  council,  police 
judge  and  clerk  of  the  police  court  should  be  elected  by  the 
people,  and  that  a  department  of  accounts,  department  of  law, 
department  of  public  safety  and  department  of  public  improve- 
ments, should  each  be  managed  by  a  single  officer  to  be  appoint- 
ed by  the  mayor.  In  villages  the  general  form  of  government 
previouelv  existing  was  not  in  any  essential  respects  modified. 
The  merit  system  of  appointments  to  the  public  service  in  all 
cities  of  the  state  was  established,  to  be  administered  by  a  state 
commission  appointed  by  the  governor.  A  requirement  was 
made  for  non-partisan  ballots  only,  in  all  municipal  elections; 
and  municipal  ownership  of  public  service  utilities,  including 
street  railway  lines  and  telephone  systems,  was  authorized. 
Nearly  two  years  were  spent  in  the  preparation  of  this  bill,  and  it 
contained  1,509  sections,  adopting  the  numbers  in  Bates'  Re- 
vised Statutes.  The  State  Bar  Association,  at  its  meeting  in 
the  summer  of  1900,  appointed  a  committee  to  investigate  the 
merits  of  the  Pugh-Kibler  code  and  to  report  to  the  next 
annual  meeting  its  recommendations  thereon,  eliminating  those 
features  which  provided  for  the  non-partisan  ballot  and  for 
municipal  ownership  of  public  utilities.  This  committee  con- 
sisted of  Messrs.  Aaron  A.  Ferris,  of  Cincinnati,  chairman; 
John  W.  Warrington  and  Harlan  Cleveland,  of  Cincinnati; 
James  R.  Garfield,  of  Cleveland,  and  Charles  T.  Lewis,  of 
Toledo.  The  committee  made  a  report  to  the  succeeding  an- 
nual meeting  of  the  Bar  Association  in  1901,  and  the  bill,  with 
some  changes,  was  endorsed  by  the  association,  the  committee 
being  directed  to  promote  its  passage  through  the  succeeding 
legislature.  This  bill,  in  the  meantime,  had  been  introduced 
in  the  74th  General  Assembly  in  1900, —  and  failed  of  passage. 
It  was  now  introduced  in  a  revised  and  shortened  form  at  the 
regular  session  of  the  75th  General  Assembly  in  1902  and 
again  failed  of  passage. 


XVI  INTRODUCTION. 

The  hopes  of  the  advocates  of  uniform  municipal  government 
seemed  now  indefinitely  deferred.  'Not  all  these  favored  the 
particular  plan  proposed  by  the  Pugh-Kibler  bill,  but  they  saw 
in  the  consideration  of  that  bill,  the  prospect  of  ultimate 
relief  from  the  abuses  of  special  legislation.  It  was  at  this 
time,  most  opportune  of  all,  that  the  ranks  of  those  who  had 
long  contended  against  municipal  classification,  received  the 
powerful  accession  of  a  united  Supreme  Court.  For  several 
years  this  court  had  been  divided,  Judges  Shauck  and  Burket 
invariably  dissenting  from  all  decisions  upholding  classifica- 
tion, and  the  majority  of  the  court,  with  the  exception  of  Judge 
Minshall,  in  State  ex  rel.  Attorney-General  v.  Ratterman,  58 
O.  S.  731,  contenting  themselves  with  following  previous  de- 
cisions without  approval.  The  position  of  the  court  at  this 
time  is  well  stated  by  Judge  Shauck  in  State  ex  rel.  Sheets  v. 
Cowles,  64  O.  S.,  at  page  179 : 

"It  is  quite  true  that  many  appeals  for  relief  from  such 
legislation  have  been  made  to  this  court,  based  on  the  claim 
that  these  beneficent  provisions  of  the  constitution  should  be 
put  into  practical  operation.  It  is  equally  true  that  the  doc- 
trine of  classification,  or  such  isolation  under  the  form  of 
classification,  has  been  adhered  to.  The  reports  show  that  a 
majority  of  the  members  of  the  court  have  regarded  themselves 
as  bound  to  pursue  a  course  upon  which  our  predecessors  in- 
advertently started.  *  *  *  These  observations  are  made 
here  only  to  show  that  a  doctrine  so  completely  discredited 
should  not  be  extended.  The  present  case  is  to  be  decided 
in  deference  to  that  doctrine  and  to  the  decisions  upon  which  it 
rests.  Some  members  of  the  court  seem  willing  to  have  it 
understood  that  they  really  entertain  such  deference.  Others 
of  us  are  willing  to  assume  it  for  the  purposes  of  this  case,  as 
it  will  permit  us  to  reach  what  we  conceive  to  be  the  correct 
conclusion  with  respect  to  this  legislation." 

The  same  member  of  the  court  who  wrote  this  opinion,  and 
who  now,  at  last,  was  enabled  to  announce,  with  the  approval 
of  an  undivided  court,  that  the  doctrine  of  classification  was 
discredited  in  Ohio,  and  would,  at  leasts  never  be  extended,  was 


INTRODUCTION.  XV11 

he  who  as  a  circuit  judge,  nearly  eight  years  earlier,  had  pro- 
nounced as  earnest  and  convincing  a  condemnation  of  special 
laws  as  any  to  be  found  in  the  books.  In  Carr  v.  The  Village 
of  West  Carrolton,  8  C.  C.  1,  Judge  Shauck  had  under  consid- 
eration an  act  authorizing  "  any  incorporated  village  in  the 
state  of  Ohio,  which  at  the  last  federal  census  had,  or  at  any 
subsequent  federal  census  may  have,  a  population  of  not  less 
than  355,  nor  more  than  365,  to  issue  bonds,"  etc.  At  page 
8  the  Court  says: 

"  Counsel  for  the  defendants  do  not  present  any  view  of 
these  constitutional  provisions,  and  of  this  statute,  which  would, 
in  their  opinion,  make  them  harmonious.  The  serious  conten- 
tion is  that  the  authoritative  decisions  of  the  Supreme  Court 
upon  acts  classifying  municipalities  require  us  to  adjudge  that 
the  act  is  valid,  though  it  be  void.  It  is  true  that  under  the 
pretence  of  classification,  all  the  large  cities  of  the  state  have 
been  isolated ;  that  under  cover  of  such  '  classification  '  numer- 
ous special  acts  have  been  passed,  each  conferring  corporate 
powers  upon  a  single  municipality,  and  that  by  repeated  de- 
cisions, the  Supreme  Court  has  held  such  legislation  to  be  valid. 
By  this  time,  surely,  we  are  inured  to  following  these  decisions 
as  to  the  acts  of  classification  which  they  uphold.  But  there 
are  substantial  reasons  why  we  should  not  attempt  to  apply  the 
principles  of  those  decisions  to  this  act.  Our  inability  to  com- 
prehend those  principles  is  so  manifest  to  ourselves  that  to 
invoke  them  as  authority  for  upholding  an  act  that  is  in  direct 
conflict  with  the  plain  provisions  of  the  constitution  would  be 
mock  deference.  The  decisions  referred  to  do  not  stand  well 
in  the  estimation  of  the  Supreme  Court  itself.  It  is  con- 
cerning the  classification  upheld  by  them  that  it  is  said  in 
State  ex  rel.  v.  Smith,  48  O.  S.  211 :  i  It  must  be  conceded 
that  the  method  of  classifying  cities  for  the  purpose  of  legisla- 
tion has  been  carried  to  the  very  verge  of  constitutional  au- 
thority. Many  conscientious  minds  believe  that  it  has  been 
exceeded.'  Much  more  vigorous  language  would  be  required 
to  express  the  opinion  of  that  classification  that  is  generally 
held  by  the  bench  and  bar  of  the  state,  and  by  many  other 


XV111  INTRODUCTION. 

intelligent  citizens  who  seek  better  municipal  government.  It 
is  well,  if  not  widely  known,  that  most  of  the  eminent  judges 
who  participated  in  the  decisions  upholding  such  classification 
lived  to  regret  the  decisions  and  deplore  the  results  which 
followed  them." 

To  the  point  that  these  decisions  upholding  classification  did 
not  "  stand  well "  in  the  estimation  of  the  Supreme  Court 
itself,  there  might  have  been  cited  the  still  earlier  case  of 
State  v.  Wall,  47  O.  S.,  where  the  Court  say,  at  page  500 : 

"  Grave  doubts  may  well  be  entertained  as  to  the  constitu- 
tionality of  this  method  of  classifying  cities  for  the  purpose  of 
general  legislation." 

But  following  the  emphatic  position  taken  in  the  Cowles 
case,  supra,  which  was  decided  in  February,  1901,  these  "  grave 
doubts  "  came  rapidly  to  be  strong  convictions.  Special  acts, 
one  after  another,  with  ominous  silence,  were  declared  uncon- 
stitutional.2 These  unreported  cases  were  followed  by  the 
decisions  of  Piatt  v.  Craig  et  al,  66  O.  S.  75,  decided  March 
18,  1902,  holding  unconstitutional  a  special  act  authorizing 
the  city  of  Toledo  to  build  bridges  over  a  navigable  river,  and 
Cincinnati  v.  Trustees  of  Hospital,  66  O.  S.  440,  decided  June 
24,  1902,  declaring  invalid  a  special  law  relating  to  the  Cin- 
cinnati Hospital. 

The  75th  General  Assembly  was  in  regular  session  when 
some  of  these  decisions  were  made,  and  their  effect  was  to 
induce  a  caution  in  legislation  which  defeated  many  special 
acts,  and  insured  the  passage  of  several  important  measures 
giving  general  and  uniform  powers  to  the  municipalities  of  the 
state.  Among  the  most  notable  of  these  was  the  act  providing 
boards  of  review  for  the  equalization  of  tax  valuations  in  all 
municipalities  (95  O.  L.  481)  ;  the  codification  of  the  health 
laws  of  the  state  (95  O.  L.  421)  ;  the  act  for  the  abolishment 
of  grade  crossings  (95  O.  L.  356)  ;  the  act  providing  for  police 
and  firemen's  pension  funds  (95  O.  L.  223),  and  the  "  Long- 
worth  bond  act "  providing  a  uniform  power  and  method  in  the 

2  State  ex  rel.  v.  Ketter,  45  B.  443 ;  Fenner  v.  Cincinnati,  46  B.  188 ; 
Cincinnati  v.  Willen,  66  O.  S.  633;  Cincinnati  v.  Alter,  66  O.  S.  669  and 
others. 


INTRODUCTION.  XIX 

issue  of  bonds  for  public  improvements  by  all  municipalities 
(95  O.  L.  318)  ;  the  last-named  act  being  subjected  to  the  test 
of  constitutionality  and  held  valid  in  Guckenberger  v.  Hender- 
son, 66  O.  S.  692. 

Then  came  the  sweeping  decisions  of  June,  1902,  which 
finally  overthrew  all  classification  of  municipalities  in  this 
state  as  it  had  developed  since  the  adoption  of  the  last  con- 
stitution. In  the  first  of  these  cases  (State  ex  rel.  Knisely  v. 
Jones,  6Q  O.  S.  453),  the  constitutionality  of  an  act  providing 
for  the  reorganization  of  the  board  of  police  commissioners 
of  the  city  of  Toledo,  and  the  appointment  of  such  commis- 
sioners by  the  governor,  was  in  question.  The  act  applied  to 
cities  of  the  "  third  grade  of  the  first  class,"  and  at  the  time 
of  its  passage,  would  have  been  operative  in  the  one  city  alone. 
The  tendency  of  the  court  was  well  understood  by  the  eminent 
counsel  who  presented  this  case,  and  a  last,  strong  effort  was 
made  to  sustain  the  act  upon  the  authority  of  the  many  former 
decisions  upholding  classification,  and  especially  those  cases 
in  which  acts  almost  identical  in  character  had  been  adjudged 
constitutional.  But  an  appeal  to  the  mistakes  of  the  past 
availed  no  longer.  In  a  decision  concurred  in  by  every  member 
of  the  court,  except  Judge  Williams  whose  illness  prevented 
his  participation  in  any  proceedings  since  the  date  of  his  last 
opinion  on  April  22,  1902,  the  court  swept  away  every  ves- 
tige of  sham  classification  in  Ohio,  and  now  declared : 

"  In  view  of  the  trivial  differences  in  population,  and  of  the 
nature  of  the  powers  conferred,  it  appears  from  such  examina- 
tion [of  numerous,  special  acts],  that  the  present  classification 
cannot  be  regarded  as  based  upon  differences  in  population, 
or  upon  any  other  real  or  supposed  differences  in  local  re- 
quirements. Its  real  basis  is  found  in  the  differing  views  or 
interests  of  those  who  promote  legislation  for  the  different 
municipalities  of  the  state.  An  intention  to  do  that  which 
would  be  violative  of  the  organic  law  should  not  be  imputed 
upon  mere  suspicion.  But  the  body  of  legislation  relating 
to  this  subject  shows  the  legislative  intent  to  substitute  isola- 
tion  for  classification,   so  that  all  the   municipalities  of  the 


XX  INTRODUCTION. 

state  which  are  large  enough  to  attract  attention  shall  be  denied 
the  protection  intended  to  be  afforded  by  this  section  of  the 
constitution." 

In  the  Cleveland  case  (State  ex  rel.  Attorney  General  v. 
Beacom  ec  al,  66  O.  S.  491),  the  act  whose  constitutionality 
was  questioned  was  entitled,  "  an  act  to  provide  a  more  efficient 
government  for  cities  of  the  second  grade  of  the  first  class," 
(88  O.  L.  105).  A  quo  warranto  suit  was  brought  against  the 
director  of  law,  the  director  of  public  works,  the  director  of 
police,  director  of  fire  service,  director  of  accounts  and  director 
of  charities  and  corrections  of  the  city  of  Cleveland,  constitut- 
ing together  the  board  of  control  of  that  city.  The  sole  ground 
upon  which  a  judgment  of  ouster  was  asked  was  that  the  de- 
fendants were  assuming  to  act  under  a  law  limited  in  its 
operation  to  cities  of  the  second  grade  of  the  first  class.  The 
court  rendered  a  judgment  of  ouster,  and  in  the  concluding 
paragraph  of  its  opinion  used  these  words: 

"  But  this  is  a  public  action,  instituted  and  conducted  solely 
for  the  protection  of  the  public  against  injuries  to  result  from 
infractions  of  the  Constitution,  and  while  a  judgment  of  ouster 
must  follow  our  conclusions,  we  think  public  considerations 
will  justify  such  suspension  of  its  execution  as  will  give  to 
those  discharging  the  duties  of  the  other  departments  of  the 
government  of  the  state  an  opportunity  to  take  such  action  as 
to  them  may  seem  best,  in  view  of  the  condition  which  the 
execution  of  our  judgment  will  create;  and  this  suspension 
will  be  until  the  2nd  of  October,  1902." 

There  was  here  not  only  another  unmistakable  announcement 
that  no  special  acts  conferring  corporate  powers  upon  munici- 
palities, as  theretofore  classified,  would  be  upheld,  but  a  sig- 
nificant suggestion  was  made  to  those  discharging  the  duties 
of  the  other  departments  of  the  government  of  the  state  to  take 
such  action  as  to  them  might  seem  best  in  view  of  the  condition 
which  the  execution  of  this  judgment  would  create. 

Perhaps,  never  before  has  such  a  condition  prevailed  in  any 
state  as  that  which  suddenly  confronted  the  people  of  Ohio 
in  the  summer  of  1902.     It  was  apparent  that  an  extraordinary 


INTRODUCTION.  XXI 

session  of  the  General  Assembly  must  be  called,  and  some  action 
taken  as  promptly  as  possible  to  establish  constitutional  gov- 
ernments for  the  municipalities  of  the  state.  In  addition  to 
the  chaotic  condition  of  municipal  affairs  produced  by  these 
decisions,  another  sudden  emergency  had  arisen,  calling  for 
immediate  action.  On  the  12th  day  of  May,  1902,  the  General 
Assembly  had  passed  an  act  to  amend  Section  6710  of  the 
Revised  Statutes.  The  new  act  became  known  as  "  the  Royer 
law."  Its  purpose  was  to  enlarge  the  jurisdiction  of  the  Su- 
preme Court  by  removing  the  three  hundred-dollar  limitation  in 
the  amount  necessary  to  be  involved  for  the  prosecution  of  error 
proceedings  in  that  tribunal,  but  the  result,  by  a  blunder  in  the 
act,  was  to  deprive  the  court  of  nearly  all  the  appellate  jurisdic- 
tion it  had  formerly  possessed. 

There  was  thus  a  double  reason  for  the  calling  of  the 
special  session.  Governor  George  K.  Nash  issued  his  procla- 
mation on  the  22nd  day  of  July,  1902,  and  called  the  General 
Assembly  to  convene  at  3:00  P.  M.,  on  August  25th,  1902. 
In  the  interim  between  the  issuing  of  the  proclamation  and  the 
assembling  of  the  legislature,  the  Governor  began  the  prepara- 
tion of  a  bill  providing  a  uniform  government  for  cities  and 
villages,  in  accordance  with  the  evident  requirements  of  the 
constitution,  as  indicated  by  the  Supreme  Court  in  the  Cleve- 
land and  Toledo  decisions.  He  requested  Mr.  Nicholas  Long- 
worth  and  Mr.  Wade  H.  Ellis,  of  Cincinnati,  to  assist  him  in 
this  work.  The  State  Bar  Association,  then  in  annual  session 
at  Put-in-Bay,  upon  the  request  of  the  Governor,  passed  a 
resolution  providing  for  the  appointment  of  a  committee  to 
confer  with  the  Governor  and  his  assistants  in  the  drafting  of 
the  proposed  bill,  and  to  review  the  work  before  its  presentation 
to  the  legislature.  President  Wheeler,  of  the  Bar  Association, 
appointed  on  that  committee  Mr.  John  W.  Warrington,  of 
Cincinnati ;  Mr.  Thomas  H.  ITogsett,  of  Cleveland,  and  Judge 
E.  B.  King,  of  Sandusky.  During  the  progress  of  the  work, 
the  Governor  and  those  engaged  in  preparing  the  proposed  meas- 
ure, had  the  advice  and  co-operation  not  only  of  this  committee 
of  the  Bar  Association,  but  of  the  leading  members  of  both 


XX11  INTRODUCTION. 

political  parties  in  the  General  Assembly,  as  well  as  Attorney- 
General  Sheets,  Mr.  Smith  W.  Bennett,  special  counsel  to  the 
attorney  general,  and  a  number  of  prominent  attorneys  and  city 
solicitors  throughout  the  state. 

The  bill  was  submitted  to  the  General  Assembly  with  the 
Governor's  message  on  August  25th,  and  became  the  affirmative 
recommendation  of  the  chief  executive.  In  effect,  the  bill 
was  a  part  of  the  Governor's  message,  in  accordance  with  the 
authority  vested  in  him  by  Sections  7  and  8  of  Article  III.  of 
the  constitution  of  Ohio,  the  first  of  which  requires  that  the 
Governor  "  shall  communicate  at  every  session,  by  message,  to 
the  General  Assembly,  the  condition  of  the  state,  and  recom- 
mend such  measures  as  he  shall  deem  expedient,"  and  the  sec- 
ond of  which  empowers  him  on  extraordinary  occasions  to 
convene  the  General  Assembly  by  proclamation,  and  state  to 
both  houses  when  assembled  the  purpose  for  which  they  have 
been  convened. 

The  bill  thus  recommended  by  the  Governor  was  introduced 
into  the  Senate  by  the  Hon.  Nicholas  Longworth,  of  Hamilton 
County,  and  became  "  Senate  Bill  No.  1."  It  was  introduced 
into  the  House  by  the  Hon.  A.  G.  Comings,  of  Lorain  County, 
and  became  "  House  Bill  No.  5."  In  the  Senate  it  was  dis- 
cussed in  committee  of  the  whole,  and  after  various  amend- 
ments proposed  by  such  committee,  passed  that  body.  In  the 
House  it  was  referred  to  a  special  committee  composed  of 
Messrs.  Comings,  of  Lorain  County ;  Painter,  of  Wood ;  Guer- 
in,  of  Erie ;  Price,  of  Athens ;  Cole,  of  Hancock ;  Williams,  of 
Hamilton;  Metzger,  of  Stark;  Thomas,  of  Huron;  Chapman, 
of  Montgomery;  Allen,  of  Fulton;  Silberberg,  of  Hamilton; 
Worthington,  of  Belmont;  Denman,  of  Lucas;  Hypes,  of 
Clark ;  Willis,  of  Hardin ;  Gear,  of  Wyandot ;  Stage,  of  Cuya- 
hoga ;  Bracken,  of  Franklin ;  Ainsworth,  of  Defiance ;  Maag,  of 
Mahoning;  Huffman,  of  Butler;  Brumbaugh,  of  Darke,  and 
Sharp,  of  Fairfield.  This  committee  held  public  meetings 
from  Wednesday,  August  27th,  to  Thursday,  September  10th, 
and  was  addressed  by  students  of  municipal  government  from 
various  parts  of  the  state,  as  well  as  from  other  states,  by  mem- 


INTRODUCTION.  XX111 

bers  of  the  State  Bar  Association  committee,  by  city  and  vil- 
lage solicitors,  mayors,  representatives  of  councils,  boards  of 
health,  boards  of  public  improvements,  tax  commissions,  muni- 
cipal associations,  chambers  of  commerce,  and  like  organiza- 
tions. 

The  bill,  with  many  amendments  effecting  important  changes 
in  the  form  of  government  and  in  the  method  of  choosing 
officers,  passed  the  House.  The  Senate  bill  as  passed  having 
been  messaged  to  the  House,  the  House  sent  it  back  with  its 
own  bill  as  an  amendment.  The  Senate  refused  to  concur  in 
the  amendments  of  the  House,  and  returned  the  bill  to  the 
House.  The  House  insisted  upon  its  amendments  and  asked 
for  the  appointment  of  a  conference  committee,  in  accordance 
with  the  joint  rules  of  the  General  Assembly.  A  conference 
committee  was  appointed  to  adjust  the  differences  between  the 
two  houses,  and  consisted,  on  the  part  of  the  Senate,  of  Senators 
Longworth,  Harding,  Patterson,  Archer  and  Harris,  and  on 
the  part  of  the  House,  of  Representatives  Comings,  Cole,  Guer- 
in,  Denman  and  Sharp.  In  addition  to  the  members  of  the 
conference  committee,  Lieutenant-Governor  Gordon,  presiding 
officer  of  the  Senate,  and  Hon.  W.  S.  McKinnon,  Speaker  of 
the  House,  were  present  during  the  work  of  the  committee. 
The  report  of  the  conference  committee  was  unanimous,  was 
concurred  in  by  both  houses,  and  the  bill  was  passed  on  Oc- 
tober 22nd,  1902.3 

It  is,  perhaps,  not  beyond  the  fact  to  say  that  the  passage  of 
a  general  law  for  the  organization  of  municipal  governments, 
and  the  distribution  of  their  powers,  in  obedient  recognition  of 

s  The  execution  of  the  judgment  of  ouster  in  the  Cleveland  case,  supra, 
had  been  suspended  until  October  2}  1902,  and  the  new  Code  not .  having 
passed  until  October  22,  and  not  providing  new  governments  for  the  munic- 
ipalities until  the  first  Monday  in  May,  1903,  it  was  necessary  to  further 
suspend  the  operation  of  this  judgment.  On  November  8,  1902,  execution  was 
suspended  until  the  further  order  of  the  court.  47  Bulletin,  833.  In  a 
later  case,  State  ex  rel.  v.  Spellmire  et  al.,  48  B.  42,  where  the  Supreme 
Court  held  unconstitutional  an  act  establishing  a  special  school  district, 
Judge  Burket,  delivering  the  opinion,  suggested  that  the  execution  of  the 
judgment  could  be  suspended  as  in  the  Cleveland  case.  "  And  thereby," 
he  observed,  " '  the  wind  is  tempered  to  the  shorn  lamb/  " 


XXIV  INTRODUCTION. 

constitutional  command  and  limitation,  signalizes  the  most 
important  epoch  in  the  history  of  such  governments  in  this 
state.  Nor  does  it  seem  improper  to  add  that  the  assumption 
of  such  a  work  by  the  legislature  of  Ohio  must  have  a  large 
influence  in  directing  attention  to  the  increasing  importance 
of  municipal  affairs  throughout  the  United  States,  and  must 
suggest  the  question  of  how  far  the  problems  of  reform  may 
be  advanced  by  the  codification  of  statutes  relating  to  the  gov- 
ernment of  cities  and  villages,  and  the  substitution  of  one  uni- 
form law  for  the  multiplex  system  of  special  charters.  The 
new  experiment  which  Ohio  is  now  to  make  will  be  watched 
with  peculiar  interest  because  of  the  fact  that  while  this  state 
has  been  a  conspicuous  sufferer  from  the  ills  of  special  legisla- 
tion, it  has  also  more  than  once  led  the  way  to  an  escape 
from  such  ills  by  the  unification  of  municipal  laws.  More  than 
fifty  years  ago  the  legislature  of  this  state  passed  a  municipal 
corporations'  act,  the  first  of  its  kind  in  this  country.4  The 
municipal  code  of  May  3,  1852  (52  O.  L.  223),  comprising 
111  sections,  provided  for  the  organization  of  cities  and  vil- 
lages, and  divided  cities  into  two  classes  based  upon  popula- 
tion. One  hundred  and  eighty-four  acts  5  were  passed  amend- 
ing or  supplementing  this  law  prior  to  the  adoption  of  the 
municipal  code  of  May  7,  1869,  (66  O.  L.  149).  This  later 
code  comprised  731  sections,  and  continued  the  previous  system, 
of  classification,  which  was  not  enlarged  or  modified  until  the 
revision  of  the  statutes  in  1880.  The  revision  introduced  the 
subdivision  of  grades  into  the  two  classes  of  cities  provided 
by  the  codes  of  1852  and  1869,  and  special  charters  were  thus 
created  for  the  five  largest  cities  of  the  state.6 

*  See  article  "  Municipal  Crisis  in  Ohio/'  in  Michigan  Law  Review  for 
February,  1903,  by  Dr.  John  A.  Fairlie,  Professor  of  Administrative  Law 
in  the  University  of  Michigan. 

5  See  Seifert  v.  Weidner,  12  C.  C.,  at  pages  11  and  12. 

c  See  preface  to  Revised  Statutes  of  1880,  page  IX,  where  it  will  be  ob- 
served that  the  revision  commissioners  were  firmly  of  the  opinion  that 
appropriate  local  legislation  could  be  provided  for  any  municipal  corpora- 
tion, designated  by  the  number  of  its  inhabitants  or  even  by  being  directly 
named,  and  that  where  corporate  power  was  conferred  the  constitution  was 
satisfied,  however  intricate  the  classification,  provided  the  plan  adopted 
permitted  all  cities  without  change  of  the  statute  to  pass  by  growth  of 
population  from  one  grade  to  another. 


INTRODUCTION.  XXV 

The  marvellous  growth  of  urban  population  in  Ohio  during 
the  last  fifty  years  has  been,  perhaps,  a  more  potent  factor  than 
all  others  in  accelerating  the  various  movements  for  municipal 
reform,  in  inducing  a  closer  analysis  and  criticism  of  the 
several  codes  and  revisions)  heretofore  adopted,  and  particularly 
in  directing  a  more  careful  scrutiny  of  the  constitution  of  1851, 
to  the  end  that  its  provisions  might  answer  the  universal  appeal 
for  protection  against  the  tyranny  of  special  laws.  The  modern 
trend  of  population  toward  the  cities  could  not  have  been  fore- 
told half  a  century  ago,  and  it  is  not  surprising  that  a  conven- 
tion assembled  to  make  the  organic  law  for  a  distinctively  agri- 
cultural state,  at  a  time  when  the  present  perplexities  of 
municipal  administration  were  far  too  remote  to  provoke  con- 
cern, and  when  the  development  of  the  Middle  West  presented 
other  issues  immediate  and  insistent,  had  no  committee  on 
municipal  corporations,  but  contented  itself  with  referring  the 
most  vital  questions  affecting  city  government  to  the  "  Commit- 
tee on  Corporations  other  than  banking."  7  In  1850,  the  total 
population  of  Ohio  was  1,980,329,  and  the  total  population  of 
all  incorporated  municipalities  was  373,828.  In  other  words, 
more  than  five  times  as  many  people  lived  in  the  country  as 
in  the  cities  and  villages.  In  1900,  the  total  population  of 
Ohio  was  4,157,545,  and  the  total  population  of  all  cities  and 
villages  in  the  state  was  2,412,352.  That  is  to  say,  consider- 
ably more  than  one-half  the  whole  number  of  inhabitants  in  the 
state  now  live  in  the  municipalities.  These  figures  tell  their 
own  story.  They  show  that  while  the  total  population  of  the 
state  has  increased  during  the  last  fifty  years  about  one  hun- 
dred per  cent.,  the  population  of  the  cities  and  villages  has 
increased  about  seven  hundred  per  cent.  When  the  constitution- 
al convention  of  1851  met  in  Cincinnati,  that  city  had  a  popula- 
tion of  115,435,  which  was  nearly  three  times  the  combined 
population  of  Cleveland,  Columbus,  Dayton  and  Toledo,  and 

*  Section  6  of  Art.  XTII,  ordaining  that  "  the  General  Assembly  shall 
provide  for  the  organization  of  cities  and  incorporated  villages  by  general 
laws,"  etc.,  emanated  from  this  committee.  So  also  did  section  1,  which 
forbids  the  legislature  to  pass  any  special  act  conferring  corporate  powers. 
(1  Debates,  260.) 


XXVI  INTRODUCTION. 

about  twice  the  then  total  population  of  what  are  now,  exclud- 
ing Cincinnati,  the  ten  largest  cities  in  the  state.8 

It  is  small  wonder,  therefore,  that  the  debates  of  the  con- 
vention and  the  assignment  of  committees  do  not  disclose  the 
question  of  municipal  government  as  a  prime  subject  of  dis- 
cussion. But  the  enormous  increase  in  the  numerical  strength 
of  such  corporations  during  the  past  fifty  years,  and  the  many 
object  lessons  in  this  state  of  their  power  for  ill  when  made 
the  buifet  of  alternating  political  majorities  through  a  central 
legislative  authority,  have  stimulated  a  study  of  the  constitu- 
tion of  1851,  and  revealed  the  fact  that  the  members  of  that 
convention  had  a  somewhat  clearer  vision  of  the  dangers  of 
special  laws  for  the  government  of  municipalities  than  the 
advocates  of  such  laws  have  been  willing  to  believe.  In  the 
early  days  of  classification  it  was  denied  that  Section  1  of 
Article  XIII,  had  any  application  whatever  to  municipal  cor- 
porations.9 But  the  fact  soon  became  accepted,  and  the  pub- 
lished debates  of  the  convention  establish  it  beyond  contro- 
versy. When  this  section  was  reported  by  the  committee,  de- 
termined efforts  were  made  to  amend  it,  and  some  of  these 
for  the  sole  purpose  of  preventing  its  application  to  municipal 
corporations.  After  the  words,  "  the  General  Assembly  shall 
pass  no  special  act  conferring  corporate  powers,"  it  was  pro- 
posed by  Mr.  Henry  Stanbery,  then  a  resident  of  Columbus, 
to  add  these :  "  except  for  municipal  purposes,  or  where  the 
objects  cannot,   in  the  opinion  of  the  General  Assembly,   be 

s  The  following  table,  showing  the  growth  of  the  ten  largest  cities  in  the 
State  since  1850,  indicates  most  strikingly  the  trend  of  population  toward 
the  municipalities: 

1850.  1900. 

Cleveland 17,034  381.768 

Cincinnati   115,435  325,902 

Toledo 3,829  131.822 

Columbus 17,882  125.560 

Dayton   10,977  85,333 

Youngstown 2,802  44,885 

Akron  3,266  42.728 

Springfield 5.108  38.253 

Canton   2,603  30  667 

Hamilton 3.210  23,914 

Total 182.146  1.230.832 

»  State  ex  rel.  Attorney  General  v.  Cincinnati,  20  Ohio  State,  18. 


INTRODUCTION.  XXV11 

attained  under  general  laws."  This  was  similar  to  provisions 
in  the  constitutions  of  New  York  and  Wisconsin.10 

A  further  attempt  was  made  to  limit  the  operation  of  this 
section  by  adding  these  words,  "  except  for  such  municipal 
and  charitable  purposes,  as,  in  the  opinion  of  the  General 
Assembly,  cannot  be  attained  by  general  laws,"  n  and  finally, 
Mr.  William  S.  Groesbeck,  of  Cincinnati,  proposed  an  amend- 
ment simply  adding  the  words,  "  except  for  municipal  pur- 
poses." All  these  amendments  were  defeated,  Mr.  Groesbeck's 
by  the  close  vote  of  45  to  43.  Then  a  motion  was  made  to 
strike  out  the  whole  section,  which  was  lost,  and  the  section  was 
adopted  as  it  stands  to-day  by  a  vote  of  55  to  40. 

Commenting  upon  the  significance  of  these  proceedings  of 
the  Constitutional  Convention,  the  Supreme  Court,  in  a  recent 
case,12  makes  this  interesting  observation :  "The  amendment 
having  failed,  adjudications  upon  this  subject  should  not  pro- 
ceed as  though  it  had  been  adopted."  Yet  adjudications  had 
so  proceeded  for  a  great  many  years,  despite  the  fact  that  the 
court  had  more  than  once  affirmed  the  application  of  this 
section  to  municipal  corporations.  A  closer  consideration  of 
Section  26,  of  Article  II.,  ordaining  that  "  all  laws  of  a  general 
nature  shall  have  uniform  operation  throughout  the  state,"  and 
Section  6,  of  Article  XIII,  which  requires  that  "  the  General  As- 
sembly shall  provide  for  the  organization  of  cities  and  villages 
by  general  laws,"  etc.,  further  emphasizes  the  fact  that  the 
constitutional  convention  had  immediately  in  mind  the  evils  of 
special  acts,  as  well  when  applied  to  municipal  corporations  as 
when  affecting  any  other  subject  or  interest  in  the  state.  And 
this  is  made  more  apparent  by  a  consideration  of  the  public  his- 
tory of  the  times  and  the  great  number  of  special  acts  affecting 
municipal  corporations,  passed  at  sessions  of  the  legislature 
held  shortly  before  the  adoption  of  the  present  constitution.13 

io  Vol.   1,  Constitutional  Debates,  p.  355.     See  also  article  on  "  Special 
Legislation,"  47  Ohio  Law  Bulletin,  p.  673. 
ii  Vol.  I.,  Constitutional  Debates,  p.  362. 

12  Cincinnati  vs.  Trustees  of  Hospital,  66  Ohio  State,  440,  447. 
is  State  ex  rel.  Knisely  et  al.  v.  Jones  et  al.,  66  Ohio  State,  453,  489. 


XXV111  INTRODUCTION. 

And  now  when  the  opportunity  came  to  be  rid  forever  of  the 
bane  of  classification  and  establish  one  uniform  law  for  the 
government  of  municipalities,  the  extraordinary  session  of  the 
General  Assembly  of  Ohio  which  Governor  Nash  had  called,  was 
confronted  with  many  diverse  plans  to  meet  the  emergency,  and 
several  bills,  differing  radically  in  scope  and  purpose,  were 
presented,  in  addition  to  the  one  drawn  at  the  instance  of  the 
Governor,  and  which  formed  the  basis  of  the  act  finally  passed. 
Many  able  and  conscientious  men  who  had  given  the  subject 
attention  believed  that  the  General  Assembly  could,  without 
violating  the  Constitution,  empower  the  cities  and  villages  of 
the  state,  each  for  itself,  to  determine  their  several  organiza- 
tions. Others  believed  that  the  legislature  should  simply 
authorize  the  holding  of  local  conventions  in  each  municipality, 
in  which  the  people  thereof  should  determine  not  only  the  form 
of  their  government,  but  what  powers  should  be  exercised  by  it, 
limited  only  by  constitutional  restrictions.14 

A  third  number  proposed  to  continue  the  classification  oi 
municipalities,  but  to  base  the  same  upon  substantial  differ- 
ences in  population,  and  thus,  as  was  believed,  avoid  the  barrier 
of  the  Supreme  Court.15  Still  others,  while  not  agreeing  to 
any  of  these  propositions,  opposed  the  bill  recommended  by  the 
governor  because  they  were  of  the  opinion  that  it  divided 
responsibility  for  misrule  or  extravagance  by  requiring  the 
chief  officers  to  be  elected  by  the  people,  whereas,  in  their  judg- 
ment, the  sorcalled  federal  plan,  which  is  generally  understood 
to  mean  the  election  of  a  mayor  and  council  by  the  people  and 

14  The  contention  for  either  of  these  views  involved  affirmance  of  the 
proposition  that  the  legislature  could  delegate  to  the  municipalities  the 
power  to  set  up  diverse  forms  of  government  and  thus  to  exercise  an  au- 
thority which  the  Supreme  Court  had  held  the  legislature  did  not  itself 
possess.  See  Governor  Nash's  message,  Appendix.  On  the  other  hand, 
it  was  clear  that  the  General  Assembly  could  provide  in  detail  the  organi- 
zation for  all  cities  and  villages.  State  ex  rel.  v.  Hawkins,  44  O.  S. 
98,  110. 

is  The  result  of  this  contention  was  the  passage  of  a  joint  resolution, 
at  the  same  extraordinary  session  which  passed  the  new  municipal  code, 
submitting  to  the  electors  of  Ohio  at  the  November  election  in  1903  a 
proposed  amendment  to  the  constitution,  which,  if  adopted,  would  empower 
the  legislature  to  divide  the  cities  of  the  State  into  three  classes  based 
upon  population.     See  Appendix. 


INTRODUCTION.  XXIX 

the  appointment  by  the  mayor  of  the  heads  of  all  executive 
departments  with  power  to  remove  at  will,  offers  the  best  form 
of  municipal  government. 

The  legislature  was  unwilling  to  hazard  the  constitutionality 
of  either  the  first,  second  or  third  of  these  plans,  while  a  dis- 
inclination to  try  an  experiment  as  yet  unfamiliar  to  the  great 
body  of  the  people  of  the  state,16  as  well  as  a  predisposition 
in  favor  of  existing  forms,  prevented  the  adoption  of  the  fourth. 
The  bill  which  finally  passed  was  not  in  any  large  sense  a  com- 
promise of  conflicting  views  or  measures,  yet  it  differs  in  many 
essential  respects  from  the  original  draft  submitted  by  the  gov- 
ernor, and  contains  numerous  important  provisions  suggested 
by  other  bills  presented  at  the  same  session. 

This  new  municipal  code  may  more  properly  be  called  a  re- 
adjustment of  existing  laws.  Its  chief  purpose  is  to  provide  a 
uniform  and  constitutional  government  to  be  assumed  at  the 
earliest  practicable  moment  by  all  the  cities  and  villages  of  the 
state.  Its  leading  features  are  an  adoption  of  forms  and 
institutions  long  established  in  Ohio.  For  example,  the  elec- 
tion directly  by  the  people  of  the  various  municipal  officers 
is  a  custom  among  the  earliest  in  this  state  and  never  departed 
from  except  in  the  instance  of  special  charters  for  two  cities. 
An  administrative  board,  such  as  the  board  of  public  service 
tinder  the  new  code,  is  also  one  of  the  oldest  institutions  in  th*3 
history  of  municipal  government  in  Ohio.  It  was  a  part  of 
the  first  code  ever  enacted,  a  part  of  the  second,  and  is  to  be 
found  in  nearly  all  recent  laws  providing  special  governments 
for  the  various  cities  of  the  state.  The  General  Assembly  which 
passed  the  new  code  has  been  accused  of  foregoing  a  favorable  op- 
portunity to  engraft  upon  the  statute  books  an  ideal  form  of 
municipal  government;  and  while  the  most  impatient  criticism 
has  usually  come  from  scholarly  citizens  of  those  states  which  are 
farthest  in  the  rear  of  Ohio  in  municipal  advancement,  the  real 
answer  to  such  a  complaint  is  found  in  the  fact  that  the  emergen- 
cy which  confronted  the  extraordinary  session  demanded  prompt 
action,   and   it  would  have   been  unwise   in  the   face   of  that 

is  The  cities  of  Cleveland  and  Columbus  alone  had  such  a  form  of  gov- 
ernment. 


XXX  INTRODUCTION. 

emergency  to  long  debate  academic  questions.  What  was  need- 
ed was  a  form  of  government  which  would  permit  the  munici- 
palities to  continue  to  exercise  their  functions;  which  would 
allay  the  uncertainty  and  disquietude  existing  all  over  the  stater 
and  provide  the  foundation  upon  which  a  completed  structure 
might  be  erected,  with  full  deliberation  and  with  the  advantage 
of  practical  experience. 

But  while  the  new  code  is  not  all  that  advanced  students  of 
city  government  desire,  it  is  a  long  step  in  the  right  direction. 
Every  departure  from  existing  institutions  is  in  harmony  with 
.the  spirit  of  advancement.  The  legislative  and  executive  de- 
parments  are  separated  by  a  clear  line.  Responsibility  for 
official  misconduct  is  more  fixed  and  certain.  The  merit  sys- 
tem and  civil  service  are  firmly  established  in  the  police  and 
fire  departments  of  every  city,  and  these  departments  are  se- 
cured against  all  political  influence  or  control.  A  substantial 
portion  of  the  membership  of  council  will  be  elected  at  large, 
thus  insuring  a  better  character  of  men  than  are  sometimes 
chosen  from  wards. 

The  mayor  is  made  the  real  head  of  the  local  government. 
He  appoints  all  chief  officers  not  elected  by  the  people,  includ- 
ing the  tax  commissioners  or  sinking  fund  trustees,  the  direc- 
tors of  public  safety,  who  have  charge  of  the  police  and  fire 
departments,  the  members  of  the  board  of  health,  the  uni- 
versity and  library  trustees,  and  others;  and  is  empowered  to 
suspend  for  misconduct  or  incapacity  any  officer  or  head  of 
department  in  the  municipal  government,  pending  charges 
which  he  is  authorized  to  file  with  council.  He  appoints,  sub- 
ject to  the  civil  service  regulations,  all  policemen  and  firemen. 
He  fills  all  vacancies  in  any  office  until  the  next  regular  election. 
He  has  the  veto  power  over  every  ordinance  passed  by  a  city 
council.  He  prepares  the  annual  budget  for  the  city's  expendi- 
tures, and  every  officer  and  head  of  department  is  required  to 
submit  to  the  mayor  detailed  statements  and  estimates  of  the 
needs  of  his  branch  of  the  government.  The  mayor  may  take 
charge  of  any  department  at  any  time  and  appoint  examiners 
to  investigate  all  its  affairs;  and  in  various  other  ways  he  has 


INTRODUCTION.  XXXI 

large  supervisory  powers.  In  the  making  of  public  contracts 
the  powers  of  council  and  the  board  of  public  service  are  sharp- 
ly distinguished.  With  respect  to  the  deposit  of  public  funds 
provision  is  made  for  competitive  bidding  and  the  treasurer 
of  every  municipality  is  made  responsible  for  any  loss  unless 
such  funds  are  deposited  in  conformity  with  this  requirement. 
The  number  of  officers  provided  for  the  cities  and  villages  is 
less  than  ever  before,  and  their  compensation  is  to  be  fixed  by 
the  local  councils  only. 

But  the  most  important  advance  is  in  the  assurance  of  the 
greatest  measure  of  home  rule  permitted  by  the  constitution. 
Heretofore  the  organization,  the  number  of  officers  and  their 
salaries,  the  authority  to  make  public  improvements,  and  to 
borrow  money,  and  nearly  all  the  powers  and  functions  of  munic- 
ipal corporations  in  this  state  were  fixed  in  special  acts  passed  by 
the  legislature.  Representatives  in  one  part  of  the  state  were 
asked  to  put  upon  the  people  living  in  another  a  government 
for  their  home  towns  without  the  consent  of  the  people  them- 
selves, either  as  to  the  cost  of  such  government  or  the  method 
of  its  administration.  Members  of  the  General  Assembly  who 
desired,  for  political  reasons,  to  oust  a  particular  board  or 
officer  in  their  home  city,  found  little  difficulty  in  securing  the 
aid  of  other  members  in  reciprocation  of  support  for  a  similar 
measure.  Extravagant  bond  issues  were  foisted  upon  the  peo- 
ple of  particular  communities,  often  without  their  knowledge 
and  more  frequently  without  their  consent.  Thus  a  delegation 
elected  to  the  General  Assembly  from  a  particular  city  in  a  fall 
campaign,  where  municipal  questions  were  not  in  issue  and 
were  not  discussed,  usurped  the  place  of  councils  elected  in 
campaigns  where  municipal  questions  and  municipal  expendi- 
tures are  discussed  and  are  often  the  chief  issues  before  the 
people.  Under  the  uniform  law  now  established,  sorcalled 
"  ripper  "  legislation  will  be  at  an  end.  Legislative  log-roll- 
ing will  cease.  Each  municipality  will  have  the  best  form  of 
government  that  any  one  possesses.  Evils  and  abuses  will  ex- 
cite universal  concern,  and  the  remedy  for  them  will  elicit 
universal  support.     Each  municipality  will  profit  by  the  ex- 


XXXI 1  INTRODUCTION. 


perience  of  every  other.  The  courts  will  be  relieved  from  the 
drudgery  of  ascertaining  what  law  governs  a  particular  city, 
and  will  take  up  the  more  important  employment  of  construing 
the  law  which  governs  all  cities.  Consistent  and  harmonious 
adjudications  will  result.  A  decision  which  affects  the  powers 
of  officers  in  Cleveland,  or  the  method  of  procedure  in  the  levy- 
ing of  taxes,  assessments,  or  the  appropriations  for  public  ex- 
penditures in  Cincinnati,  will  be  of  equal  interest  in  Columbus, 
Toledo  and  Dayton. 

The  new  municipal  code  contains  many  imperfections. 
These  are  due,  first,  to  the  limited  time  in  which  an  extraor- 
dinary session  of  the  legislature  could  consider  it  and  the 
number  of  committees  through  whose  hands  it  passed;  and 
secondly,  to  the  fact  that  existing  forms  and  institutions  are 
hard  to  displace,  and  the  people  generally  hold  with  jealous 
tenacity  to  laws  with  which  they  have  been  long  familiar  and 
look  with  suspicion  upon  new  experiments.  Even  in  the  work 
which  the  General  Assembly  undertook  to  perform  a  great  deal 
was  left  uncompleted,  and  a  labor  of  immediate  importance  to 
the  state  will  be  the  embodying  of  all  statutes  on  the  subject 
of  municipal  corporations  in  one  harmonious  act,  which  should 
be  codified  with  appropriate  sectional  numbers  and  made  to 
constitute  title  XII  of  the  Eevised  Statutes. 

Imperfect,  however,  as  is  the  new  act,  it  restores  constitu- 
tional government  to  the  municipalities,  and  presents  the  basis 
for  ultimate  efficiency.  The  hapless  pathway  behind  us  is 
closed  forever,  and  this  alone  should  encourage  and  inspire  all 
those  who  have  a  healthy  confidence  in  the  ability  of  American 
citizenship  to  work  out  the  problems  of  municipal  reform. 

Wade  H.  Ellis. 

Cincinnati,  May  1,  1903. 


ELLIS'S  ANNOTATED  OHIO 
MUNICIPAL  CODE. 


PART  I 


THE  NEW  CODE  PROPER 

AND  ALL  SECTIONS 

OF  THE  REVISED  STATUTES 

RE-ENACTED  THEREIN. 


THE  NEW 
MUNICIPAL  CODE. 


,,„      0r  TUT     *^ 

university 

.     ^        or 


I 

CLASSIFICATION  OF  MUNICIPALITIES. 


1.  GENEKAL  PKOVISIONS. 
Sec.  1.  [Division  into  cities  and  villages.]  AH  municipal 
corporations,  which,  at  the  last  federal  census,  had  a  population 
of  five  thousand  or  more,  shall  be  cities.  All  other  municipal 
corporations  shall  be  villages.  All  cities  which,  at  any  future 
federal  census,  have  a  population  of  less  than  five  thousand  shall 
become  villages.  A.11  villages  which,  at  any  future  federal  cen- 
sus, have  a  popultiiion  of  five  thousand  or  more,  shall  become 
cities.1 


( 1 )  Title. —  The  new  » ode  is  enti- 
tled "  An  act  to  provide  for  the  or- 
ganization of  cities  and  incorporated 
villages,  and  to  restrict  their  power 
of  taxation,  assessment,  Borrowing 
money,  contracting  debts,  and  loan- 
ing their  credit,  so  as  to  prevent 
the  abuse  of  such  powers,  as  re- 
quired by  the  Constitution  of  Ohio, 
and  to  repeal  all  sections  of  the 
Revised  Statutes  inconsistent  here- 
with." This  title  adopts  the  lan- 
guage of  §  6,  Art.  13,  Const,  of 
Ohio.  In  Parsons  v.  Columbus,  50 
O.  S.,  460,  it  is  held  that  the  duty 
imposed  by  this  section  of  the  Con- 
stitution with  respect  to  restric- 
tions upon  municipalities  is  ad- 
dressed to  the  conscience  and  judg- 
ment of  the  legislature,  and  is  not 
the  suDJect  of  judicial  correction. 

Title  as  aid  in  construction. —  The 
title  of  an  act  may  be  considered  to 
explain  its  object  and  remove  am- 
biguities.    Burgett  v.  Burgett,  1  0. 


469,  480;  Steamboat  Monarch  r. 
Finley,  10  O.  384,  387;  State  v.  G. 
A.  Society,  11  O.  1,  10;  L.  B.  Soci- 
ety v.  Lewis,  7  O.,  1st  part,  80,  86; 
Hogg  v.  Zanesville  C.  &  M.  Co.,  5  O. 
410,  415;  Burgunder  v.  Weil,  60  O. 
S.  234,  242;  Hall  v.  Siegrist,  13  Dec. 
46. 

Validity  of  Act.— The  new  mu- 
nicipal code  was  held  to  be  con- 
stitutional and  to  have  been  prop- 
erly and  regularly  passed  in  Zum- 
stein,  a  taxpayer  on  behalf  of  the 
City  of  Cincinnati,  v.  Mullen  et  al., 
48  B.,  117;  67  O.  S.  382. 

Classification. —  Present  and 
former. —  The  division  of  all  muni- 
cipal corporations  into  cities  and 
villages  marks  a  new  departure  in 
the  municipal  law  of  Ohio,  under 
the  Constitution  of  1851.  The  Mu- 
nicipal Code  of  1852  (50  O.  L.  223- 
237)  divided  municipal  corporations 
into  four  classes,  viz.,  cities  of  th« 
first  class,  cities  of  the  second  class, 

1 


THE    OHIO     MUNICIPAL    CODE. 


[Code  §  1 


incorporated  villages  and  incorpor- 
ated villages  for  special  purposes. 
The  Municipal  Code  of  1869  (66  O. 
L.  149)  provided  the  same  classi- 
fication as  that  of  1852.  The  es- 
tablishment of  grades  within  the 
two  classes  of  cities,  the  division  of 
grades  into  first,  second,  third,  etc., 
and  the  subdivision  of  particular 
grades  have  been  matters  of  gradual 
growth.  The  most  recent  statute 
governing  classification,  previous  to 
the  enactment  of  the  new  code,  was 
passed  in  1898  ( §  1546  R.  S.,  93  O.  L. 
601)  and  divided  municipal  corpora- 
tions into  14  classes,  viz.,  cities,  vil- 
lages and  hamlets;  cities  being  di- 
vided into  two  classes,  first  and  sec- 
ond, the  first  class  being  divided 
into  three  grades,  first,  second  and 
third,  with  provision  for  a  future 
fourth;  and  the  second  class  into 
eight  grades,  first,  second,  third, 
third  a,  third  b,  third  c,  fourth  and 
fourth  a.  Villages  had  previously 
been  divided  into  a  first  and  second 
class  (§  1549  R.  S.,  89  0.  L.  302.) 
There  were  never  any  towns  in  Ohio, 
established  by  the  legislature  under 
the  Const,  of  1851,  although  §  30 
of  Art.  II  and  §  6  of  Art.  VIII  rec- 
ognize a  class  of  municipal  corpora- 
tions to  be  so  designated. 

Decisions  on  classification. —  Until 
the  decisions  of  June,  1902,  which 
brought  about  the  extraordinary 
session  of  the  Ohio  legislature  and 
the  enactment  of  tne  new  Municipal 
Code,  the  Supreme  Court  had  uni- 
formly upheld  the  classification  of 
cities  for  purposes  of  organization 
and  distribution  of  powers.  State 
ex  rel.  Atty  Gen.  v.  Covington,  29 
O.  S.  102;  State  v.  Brewster,  39  O. 
S.  653 ;  State  v.  Pugh,  43  O.  S.  98 ; 
State  ex  rel.  v.  Hawkins,  44  O.  S. 
98;  State  ex  rel.  v.  Hudson,  44  O. 
S.  137;  Marmet  v.  State,  45  O.  S. 
63 ;  State  ex  rel.  v.  Cincinnati,  52  O. 


S.  419;  State  ex  rel.  v.  Rattermann, 
58  O.  S.  731.  Acts  relating  to  par- 
ticular grades  and  classes  of  cities- 
were,  when  attacked  on  constitution 
al  grounds,  subjected  to  the  requir*- 
ments  of  §  26  of  Art.  2,  ordaining 
that  all  laws  of  a  general  nature 
shall  have  uniform  operation 
throughout  the  state,  and  §  1  of 
Art.  13,  forbidding  the  General  As- 
sembly to  pass  any  special  act  con- 
ferring corporate  powers.  If  th« 
subject  matter  of  an  act  was  one 
of  general  interest  and  concern,  and 
the  act  was  restricted  in  operation 
to  a  class  or  grade  of  cities  it  was 
void.  Cincinnati  v.  Steinkamp,  54 
O.  S.  284;  State  ex  rel.  v.  Ketter, 
45  B.  443;  State  ex  rel.  v, 
Cowles,  64  O.  S.  162.  Even  though 
an  act  conferred  corporate  power, 
however,  and  was  special  in  the  sense 
that  it  operated  in  but  one  city 
of  the  state,  it  was  upheld  if  it 
operated  uniformly  within  the  grade 
and  class  to  which  it  was  made  to 
apply.  State  ex  rel.  v.  Baker,  55  0. 
S.  1;  Alter  v.  Cincinnati,  56  O.  S. 
47;  State  v.  Toledo,  48  O.  S.  112; 
State  ex  rel.  v.  Cowles,  64  O.  S. 
162.  But  the  classification  was  re- 
quired  to  be  reasonable  and  not  illu- 
sory or  arbitrary.  Costello  v.  Wy- 
oming, 49  O.  S.  202;  Bronson  v. 
Oberlin,  41  O.  S.  476.  The  later 
decisions,  preceding  those  in  the 
Cleveland  and  Toledo  cases  in  June, 
1902,  discredited  the  doctrine  of 
classification  for  any  purpose  by  re- 
fusing to  extend  it,  and  prepared 
the  way  for  its  final  overthrow. 
Geier  v.  Cincinnati,  63  O.  S.  568; 
Cincinnati  v.  Trustees  of  Hospital, 
66  O.  S.  440;  Cincinnati  v.  Willen. 
66  O.  S.  633 ;  State  ex  rel.  v.  Cowles, 
supra.  In  the  Cleveland  and  Tole- 
do cases  ( State  ex  rel.  Atty.  Gen.  v. 
Beacom,  66  O.  S.  491,  and  State  ex 
rel.  Knisely  v.  Jones,  66  O.  S.  453) 


Code 


CLASSIFICATION     OF     MUNICIPALITIES. 


3 


the  acts  in  controversy  provided  a 
different  organization  or  agency  for 
exercising  municipal  powers  in  the 
one  city  from  that  provided  else- 
where in  the  state.  Similar  acts  had 
been  upheld  in  earlier  cases  cited 
above.  But  the  court  now  declared 
that  classification  as  it  had  devel- 
oped in  Ohio,  had  become  "  isola- 
tion," and  had  ceased  to  have  any 
basis  in  differences  of  population  or 
local  requirements,  and  refused  £o 
recognize  such  classification  as  ef- 
fectual to  designate  recipients  of 
municipal  powers,  whether  in  the 
strict  sense  such  powers  are  govern- 
mental or  corporate.  It  seems  un- 
questionable that  the  effect  of  these 
decisions  is  to  hold  unconstitutional 
for  any  and  all  purposes  the  classi- 
fication of  municipalities  in  this 
state  .as  the  same  was  in  force  imme- 
diately prior  to  the  passage  of  the 
Code  of  1902.  It  is  not  so  certain 
that  these  decisions  justify  the  con- 
tention that  a  reasonable  classifica- 
tion of  municipalities,  based  on  sub- 
stantial differences  in  population, 
would  be  held  unconstitutional. 

What  classification  permissible. — 
Whether  the  exclusive  classification 
of  municipal  corporations  into  cities 
and  villages,  provided  for  in  §  1  of 
the  new  Code,  is  the  only  one  that 
would  be  permissible  under  the  Con- 
stitution has  not  been  decided  by 
the  Supreme  Court.  In  the  Toledo 
case  (66  O.  S.  453),  the  court  dis- 
tinctly announces  that  the  question 
whether  the  provisions  of  §  6,  Art. 
XIII,  of  the  Const,  of  Ohio,  ordain- 
ing that  the  legislature  "  shall  pro- 
vide for  the  organization  of  cities 
and  villages  by  general  laws," 
mean  to  prohibit  any  other  classi- 
fication, is  not  decided.  The  ques- 
tion was  also  left  open  in  C.  L.  & 
A.  Ry.  Co.  v.  North  Bend,  70  0.  S. 
46.     The    extraordinary    session    of 


tne  General  Assembly,  in  1902, 
adopted  a  resolution,  submitting  to 
the  electors  of  Ohio,  at  the  Novem- 
ber election,  1903,  a  proposed 
amendment  to  the  Constitution, 
which  would  have  empowered  the 
legislature  to  divide  the  cities  of 
the  state  into  three  classes,  based 
upon  population  (see  96  O.  L. 
117).  This  amendment  was  lost  by 
a  decisive  vote. 

Status  of  Hamlets. — The  mu- 
nicipal code  of  1902  did  not  recog- 
nize hamlets  except  as  it  did  not 
specifically  repeal  those  sections  of 
the  Revised  Statutes  relating  to 
their  creation,  government  and 
powers  and  except  as  §  100  of  the 
Code  re-enacted  the  "Longworth 
act,"  as  passed  by  the  regular  ses- 
sion of  the  75th  General  Assembly, 
April  29,  1902,  (95  O.  L.,  318), 
which  then  authorized  the  issue  of 
bonds  for  public  improvements  by 
"cities,  villages,  hamlets  and  town- 
ships." Hamlets  were  included  in 
former  classifications.  (§  1546  R. 
S.,  93  O.  L.  601,  repealed.)  They 
were  recognized  by  the  statutes  as 
municipal  corporations  (§  1550  R. 
S.,  repealed)  and  held  to  be  such 
in  Annexation  of  Newburgh,  15  C. 
C.  78,  and  State  ex  rel.  v.  Wagar, 
19  C.  C.  149,  151.  Section  1549  R. 
S.,  repealed  by  the  Code,  seems  to 
have  made  hamlets  of  all  municipal 
corporations  having  less  than  200 
inhabitants. 

The  session  of  the  legislature  in 
1906  amended  the  Longworth  Act 
and  left  out  all  reference  to  ham- 
lets. On  the  other  hand,  the  same 
session  amended  one  of  the  sections 
relating  to  hamlets  so  as  to  make 
it  conform  to  the  act  relating  to 
street  commissioners  and  road  su- 
pervisors. But  notwithstanding  the 
amendment  referred  to  and  the 
failure  to  repeal  the  hamlet  stat- 
utes,  it   would   seem   that  the   new 


THE   OHIO   MUNICIPAL   CODE. 


[Code  §  2 


code  abolished  hamlets  and  made 
them  villages  instead. 

Municipal  corporations,  therefore, 
which  were  hamlets  before  the  en- 
actment of  the  new  code,  have  now 
become  villages  and  must  elect 
such  officers  and  exercise  their  gov- 
ernmental functions  in  such  man- 
ner, as  provided  in  the  Code  for 
villages,  or  surrender  their  corpo- 
rate  powers   as   authorized  therein. 

Hamlets  which,  after  the  new 
Code  went  into  effect,  failed  to  elect 
village  officers  as  provided  in  the 
Code,  were  held  to  have  become  vil- 
lages nevertheless,  and  the  hamlet 
officers  were  held  to  be  acting  as 
village  officers,  until  the  election 
and  qualification  of  the  proper  vil- 
lage officers.  C.  L.  &  A.  St.  Ry. 
Co.  v.  North  Bend,  70  O.  S.  46. 

Thus,  it  was  held  in  the  case  of 


the  hamlet  of  North  Bend  that  un- 
der the  new  code  it  became  a  cor- 
porate village  notwithstanding  it 
had  not  elected  the  proper  village 
officers,  and  that  a  street  railway 
was  without  authority  to  construct 
a  railway  on  or  above  the  streets 
without  the  consent  of  the  existing 
officers  of  the  municipality.  C.  L. 
&  A.  St.  Ry.  Co.  v.  North  Bend,  70 
O.  S.  46. 

See  further  as  to  whether  the 
powers  conferred  on  councils  of  vil- 
lages by  the  code  may  be  exercised 
by  trustees  of  hamlets  until  the 
proper  village  officers  have  been 
elected.  State  ex  rel.  v.  Wagar,  19 
C.  C.  149 ;  In  re  Annexation  of  New- 
burgh,  15  C.  C.  78;  Carey  v.  State, 
70  O.  S.  121.  See  also  as  to  status 
of  hamlets  prior  to  new  code,  Bill- 
ington  v.  Hoverman,  18  C.  C.  637. 


Sec.  2.  [Proclamation  of  Secretary  of  State ;  advancement  and 
reduction  of  municipalities.]1  When  this  act  takes  effect,  and 
whenever  the  result  of  any  future  federal  census  is  officially 
made  known  to  the  secretary  of  state,  he  shall  forthwith  issue 
a  proclamation,  stating  the  names  of  all  municipal  corporations 
having  a  population  of  five  thousand  or  more,  and  the  names  of 
all  municipal  corporations  having  a  population  of  less  than  five 
thousand,  together  with  the  population  of  all  such  corporations.2 
A  copy  of  said  proclamation  shall  forthwith  he  sent  to  the 
mayor  of  each  municipal  corporation,  which  copy  shall  he  forth- 
with transmitted  to  council,  shall  be  read  therein  and  made  a 
part  of  the  records  thereof,  and  from  and  after  thirty  days  after 
the  issuance  of  said  proclamation  each  municipal  corporation 
shall  he  a  city  or  village,  in  accordance  with  the  provisions  of 
this  act.  All  officers  of  a  village  advanced  to  a  city,  or  of  a 
city  reduced  to  a  village,  shall  continue  in  office  until  succeeded 
by  the  proper  officers  of  the  new  corporation  at  the  next  regulaT 


Code    §    2]      CLASSIFICATION     OF     MUNICIPALITIES.  5 

election,  and  the  ordinances  thereof  not  inconsistent  with  the 
?aws  relating  to  the  new  corporation  shall  continue  in  force, 
until  changed  or  repealed.3 


(1)  Old  Sections. —  Compare  §§ 
1617-1622  R.  S.,  repealed,  relating 
to  the  duties  of  certain  state  officers 
to  determine  what  municipalities 
were  to  be  advanced  or  reduced  in 
grade  or  class,  and  §§  1581  and  1588 
R.  S.,  repealed,  relating  to  officers 
continuing  in  office  and  ordinances 
remaining  in  force  pending  advance- 
ment of  hamlets,  villages  and  cities. 

(2)  List  of  cities  and  villages. 
—  For  complete  list  of  cities  and 
villages  under  the  new  Code,  with 
the  population  of  each,  as  shown 
by  the  first  proclamation  of  the 
Secretary   of    State,    see   Appendix. 

The  first  proclamation  was  issued 
November  17th,  1902,  and  showed 
71  municipal  corporations  with  5,000 
or  more  inhabitants,  and  613  with 
less  than  5,000. 

(3)  Officers  holding  over. — 
Where  officer  is  authorized  to  hold 
his  office  after  expiration  of  term 
until  a  successor  qualifies,  there  is 
no  vacancy  during  such  period,  and 
incumbent  holding  over  is  a  de  jure 
officer.  State  ex  rel.  v.  Howe,  25 
O.  S.  588. 

Where  officer  legally  holds  over 
until  a  successor  qualifies,  he  holds 
on  as  of  his  old  term.  State  ex  rel. 
v.  Killits,  8  C.  C.  30. 

Whether  sureties  on  officer's  bond 
can  be  held  for  such  extended  term, 
quere.     lb. 

Officer  does  not  hold  over  unless  a 
successor  is  provided  for.  McHugh 
v.  Cincinnati,  1  C.  S.  C.  R.  145. 

Officer  removed  for  misconduct 
cannot  hold  over  under  law  author- 
izing incumbent  to  continue  in  office 
until  his  successor  is  elected  or  ap- 


pointed. State  ex  rel.  v.  Hawkins, 
44  O.  S.  98,  117. 

Where  a  new  code  provided  for 
one  officer  who  was  to  perform  the 
duties  theretofore  performed  by 
three  under  the  previous  act,  the 
office  of  the  three  was  held  abolished. 
McHugh  v.  Cincinnati,  1  C.  S.  C. 
R.  145. 

Where  a  new  code  created  a  new 
office,  but  made  no  provision  for 
filling  it,  it  was  held  there  was  a 
vacancy  until  the  next  annual  elec- 
tion, and  the  person  elected  to  the 
office  held  only  until  the  next  an- 
nual election.  State  ex  rel.  v.  Cook, 
20  O.  S.   252. 

The  constitutional  provision 
against  affecting  the  salary  of  an 
officer  during  his  existing  term,  does 
not  apply  to  an  officer  holding  over 
until  his  successor  is  elected  and 
qualified.  Woehler  v.  Toledo,  6  B. 
282. 

Where  an  office  is  abolished  by  a 
new  law,  if  the  duties  of  the  office 
were  specific  and  limited  and  not 
continuous  during  the  year,  the  an- 
nual salary  must  be  apportioned, 
not  by  the  time  of  service,  but  by 
the  duties  actually  performed,  and 
therefore  may  be  wholly  earned  at 
the  time  of  abolishment  of  the  office. 
Ex  parte  Lawrence,  1  O.  S.  431. 
Mandamus  will  not  lie  at  the  suit 
of  one  claiming  succession  to  an  of- 
fice unless  the  act  under  which  he 
claims  is  valid,  and  this  is  true,  al- 
though defendant's  title  may  also  be 
invalid.  State  ex  rel.  v.  Jones,  66 
O.  S.  453. 

Ordinances  continuing  in  force. 
—  Only  such  ordinances  would  con« 


6 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  3 


tinue  in  force,  as,  if  passed  under 
the  new  code,  would  be  authorized  by 
its  provisions.  See  Neff  v.  Bates,  25 
O.  S.  169;  Hubbard  v.  Norton,  28 
O.  S.  116. 

On  the  other  hand,  an  ordinance 
formerly  passed  but  not  authorized 
by  the  laws  then  in  force  would  not 
be  valid,  even  though  authorized  by 
the  new  code,  notwithstanding  the 
provision  continuing  in  force  all 
former  ordinances  not  inconsistent 
with  the  new  code.  Cotter  v.  Doty, 
5  O.  393,  398. 

An  ordinance  that  was  unconsti- 
tutional would,  of  course,  not  be 
continued  in  force.  See  Zanesville 
v.  Auditor,  5  O.  S.  590. 


An  ordinance  fixing  a  salary 
would  continue  in  force,  if  the  au- 
thority passing  the  ordinance  has 
the  power  under  the  new  code  and 
the  salary  does  not  exceed  the  max- 
imum provided  by  the  new  code,  even 
though  the  law  under  which  the 
ordinance  was  passed  is  repealed 
by  the  code.  Moore  v.  Cincinnati, 
26  O.  S.  582. 

An  ordinance  providing  for  the 
annexation  of  contiguous  territory 
not  inconsistent  with  a  new  code 
was  held  to  continue  in  force  under 
a  provision  such  as  that  in  the  pres- 
ent code.  Croll  v.  Franklin,  40  O. 
S.  340. 


Sec.  3.  [Merger  of  township  in  municipality.]1  When  the 
corporate  limits  of  a  city  or  village  become  identical  with  those 
of  a  township,  all  township  offices  shall  be  abolished,  and  the 
duties  thereof  shall  thereafter  be  performed  by  the  correspond- 
ing officers  of  the  city  or  village,  excepting  that  justices  of  the 
peace  and  constables  shall  continue  to  exercise  their  functions 
under  municipal  ordinances  providing  offices,  regulating  the 
disposition  of  their  fees,  their  compensation,  clerks  and  other 
officers  and  employes,  and  such  justices  and  constables  shall  be 
elected  at  municipal  elections.  All  property,  moneys,  credits, 
books,  records  and  documents  of  such  township  shall  be  de- 
livered to  the  council  of  said  city  or  village,  and  all  rights, 
interests  or  claims  in  favor  of  or  against  the  township  may  be 
enforced  by  or  against  the  corporation.2 


(1)  See  old  §§  1623,  1625,  1627 
R.  S.,  repealed. 

(2)  Extent  of  merger. —  Under 
the  act  of  March  7th,  1872,  which 
contained  a  provision  excepting  jus- 
tices of  the  peace  and  constables 
from  the  operation  of  the  merger 
law,  similar  to  the  one  in  the  pres- 


ent code,  it 'was  held  that  the  act 
preserved  the  corporate  existence  of 
such  township  for  the  sole  purpose 
of  electing  justices  of  the  peace  and 
constables,  evidently  to  meet  the 
constitutional  requirement  that  jus- 
tices of  the  peace  shall  be  elected  by 
townships,    but  that   for    all    other 


Code    §    4]      SURRENDER    OF     CORPORATE     POWERS.  7 

purposes  the  township  organization  porate  limits  of  a  city  or  village  be- 
in  this  class  of  cities  and  villages  came  identical  with  those  of  a  town- 
was  abolished.  McGill  v.  State,  S4  ship  and  the  office  of  township  clerk 
O.  S.  228   251.  was  thereby  abolished  the  office  of 

Effect    of    merger. —  Under    the  the   clerk   of    such   city   or   village 

former    statutes    it   was    held    that  became    a    depository    for     chattel 

where  a  township  is  merged  into  a  mortgages.     Curtiss    v.    McDougal, 

city,   the  directors  of  a   county  in-  26  0.   S.  66.- 

firmary  may  maintain  a  suit  against  Municipality  is  part  of  town- 

the  corporation  for  the  costs  of  tern-  ship. —  Where  the  boundaries   of  a 

porary   relief    furnished    a   pauper;  city  are  not  coterminus  with  those 

and  such  action  may  be  prosecuted  of  a  township  the  territory  within 

either  in  the  county  of  plaintiff  or  such  city  does  not  cease  to  be  part 

directors  or  in  that  in  which  the  city  of  the  township  or  townships  within 

is  situated.     Directors,  etc.,  v.  Tole-  the  limits   of  which  it  is  situated, 

do,  15  O.  S.  409.  for     election    purposes.       State    v. 

It  was  also  held  under  the  for-  Ward.  17  O.  S.  543. 
mer    statutes    that    where    the    cor- 

Sec.  4.  [Surrender  of  corporate  powers:  judicial  notice  of 
classification.]1  Villages  may  surrender  their  corporate  powers 
upon  petition  to  council  of  at  least  forty  per  cent.2  of  the  electors 
thereof,  to  be  determined  by  the  number  voting  at  the  last 
municipal  election,  and  an  affirmative  vote  of  a  majority  of 
said  electors  at  a  special  election  which  shall  be  provided  for 
by  council,  and  conducted  and  canvassed,  and  the  result  certified 
and  made  known  as  regular  municipal  elections  within  the 
corporation.  If  the  result  of  the  election  is  in  favor  of  such 
surrender,  the  clerk  of  the  village  shall  certify  the  same  to  the 
secretary  of  state  and  the  recorder  of  the  county,  who  shall  re- 
cord the  same  in  their  respective  offices,  and  thereupon  the 
corporate  powers  of  such  village  shall  cease;  provided  that 
such  surrender  of  corporate  powers  shall  not  affect  vested  rights 
or  accrued  liabilities  of  such  village,3  or  the  power  to  settle 
claims,  dispose  of  property,  or  levy  and  collect  taxes  4  to  pay 
existing  obligations ;  but  after  the  presentation  of  the  petition 
herein  referred  to,  council  shall  not  create  any  new  liability 
until  the  result  of  the  election  is  declared,  nor  thereafter,  if 
such  result  is  in  favor  of  the  surrender  of  corporate  powers; 


8 


THE    OHIO     MUNICIPAL    CODE. 


[Code  §  4 


provided,  further,  that  due  and  unpaid  taxes  may  thereafter 
be  collected,  and  all  moneys  or  property  remaining  after  such 
surrender  shall  belong  to  the  school  district  embracing  such 
village. 

All  courts  shall  take  judicial  notice  of  the  classification  of 
municipal  corporations,  and  their  advancement,  reduction  and 
surrender  of  powers.5 


(1)  Old  Sections.— See  sections 
1633-1647  R.  S.  inclusive,  repealed. 
The  sections-  (1633-1642  R.  S.)  al- 
lowing cities,  to  surrender  corporate 
powers  and  be  reduced  to  villages, 
are  repealed,  without  any  corre- 
sponding provisions  being  made  in 
the  new  code.  It  is  no  longer  op- 
tional with  a  municipality  to  be  a 
city  or  village.  Municipalities  over 
5,000  population  at  the  last  federal 
census,  are  necessarily  cities,  unless 
changed  by  the  next  federal  census. 

(2)  Number  of  Petitioners. — 
Under  sections  1633  to  1647  R.  S. 
of  the  former  law  on  this  sub- 
ject, it  was  held  that  in  a  mandamus 
in  the  Court  of  Common  Pleas  to 
compel  the  council  of  a  village  to 
order  an  election  on  the  question  of 
surrender  of  corporate  powers,  the 
issue  of  whether  the  requisite  num- 
ber had  signed  the  petition  was  not 
one  of  right  triable  by  a  jury,  and 
that  either  party  might  appeal  from 
the  judgment  of  the  Court  of  Com- 
mon Pleas  thereon.  Dutten  v.  Vil- 
lage of  Hanover,  42  O.  S.  215. 

It   was   held    to   be    the   duty   of 
council   before    taking    action    upon 
such  a  petition  to  satisfy  itself  that 


the  petition  contained  the  requisite 
number  of  qualified  petitioners,  and 
for  this  purpose,  council  might  refer 
the  petition  to  a  committtee  to  make 
examination.     lb. 

Signers  of  such  a  petition  might 
withdraw  their  names  at  any  time 
before  final  action  thereon  by  coun- 
cil, and  if  the  number  of  names  is 
reduced  below  the  requisite  amount, 
council  must  refuse  to  order  an  elec- 
tion,    lb. 

(3)  See  notes  to  section  211  of 
the  Code. 

(4)  Under  former  sections  it  was 
held  that  officers  of  a  municipality, 
after  its  corporate  rights  had  been 
extinguished,  cannot  by  resignation 
avoid  the  duty  of  levying  and  col- 
lecting the  taxes  to  pay  its  debts. 
Gorgas  v.  Blackburn,  14  O.  252. 

(5)  Under  the  classification  of 
cities  which  had  obtained  before  the 
enactment  of  the  new  code,  Courts 
were  not  bound  to  take  judicial  no- 
tice of  the  grades  and  classes  of 
municipal  corporations.  Bolton  v. 
Cleveland,  35  O.  S.  319;  Massa  v. 
The  State,  3  C.  C.  9;  but  see  State 
v.  Constantine,  42  O.  S.  437. 


FORM   OF  PETITION   TO   COUNCIL   FOR   SURRENDER   OF   CORPO- 
RATE  POWERS. 

To  the  Council  of  the  Village  of ,  State  of  Ohio: 

The  undersigned,  being  forty  per  cent,  of  the  electors  of  the  village  of 
,  respectfully  represent  that  it  is  their  desire  that  the  corporate 


Code    §    5]  CREATION    AND    INCORPORATION.  9 

powers  of  said  village  be  surrendered,  and  that  the  said  village  become  a 
part  of  the  township  organization  within  the  territorial  limits  of  which  it  is 
situated,  and  they  therefore  pray  you  to  cause  an  election  to  be  held  in  said 
village  in  the  manner  provided  by  law  to  determine  the  sense  of  the  electors 
thereof  upon  that  subject. 

(This  petition  must  be  signed  by  40  per  cent,  of  the  electors  of  the 
Village. ) 

FORM  OF  ORDINANCE  ORDERING  ELECTION. 
Ordinance  No 

Ordering  election  on  question  of  surrendering  corporate  powers. 

Be  it  ordained  by  the  council  of  the  village  of ,  State  of  Ohio : 

Sec.    ( 1 )      That  upon  the day  of ,   190. .,  there  be  held  a 

special  election  in  the  village  of ,  State  of  Ohio,  at (here  in- 
sert place  of  holding  election)  by  the  qualified  voters  of  said  village  to  vote 
upon  the  question  of  surrendering  the  corporate  powers  of  said  village  and 
of  reducing  said  village  to  be  a  part  of  the  township  organization  within 
the  territorial  limits  of  which  it  is  situated. 

Sec.  ( 2 ) .  The  ballots  cast  at  such  election  shall  contain  the  words, 
"  For  Surrender  "  or  "  Against  Surrender  "  and  such  election  shall  be  held 
and  conducted  as  regular  municipal  elections  within  the  corporation. 

Sec.  (3)  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed  this day  of ,    19 


Attest:  President  of  Council. 


Clerk. 
FORM  OF  CLERK'S  CERTIFICATE. 
To  the  Honorable,  the  Secretary  of  State  of  the  State  of  Ohio,   [or  Re 

corder  of  the  county  of ] : 

This  is  to  certify  that  at  a  special  election  duly  provided  by  the  council 

and  held   in  the  village  of ,   State  of  Ohio,  on  the day  of 

,  19. . .,  a  majority  of  the  electors  of  said  village  voted  in  favor 

of  the  surrender  of  the  corporate  powers  of  said  village. 

Given  under  my  hand  and  official  seal,  this day  of   ,  19.  . ., 


Clerk. 


2.    CREATION  AND  INCORPORATION  OF  VILLAGES. 
Sec.  5.     [Statutes  re-enacted.]      Villages  may  be  created  and 
incorporated  in  the  manner  now  provided  in  title  XII,  division 
2,  chapter  2  of  the  Revised  Statutes  of  Ohio.1 

(1)  Title  XII.,  Div.  2,  Chap.  2, 
R.  S.,  contains  sections  1553-157 la 
inclusive. 


10  THE    OHIO    MUNICIPAL    CODE.  [Code    §    5 

Sec.  1553  R.  S.  [Right  to  incorporation;  restrictions.]  The  in- 
habitants of  any  territory  laid  off  into  village  or  hamlet  lots,  a 
plat  of  which  territory  has  been  acknowledged  and  recorded  as  is 
provided  with  respect  to  deeds,  or  the  inhabitants  of  any  terri- 
tory which  has  been  laid  off  into  such  lots  and  surveyed  and 
platted  by  an  engineer  or  surveyor  who  certifies  thereon,  under 
oath,  to  its  correctness,  and  which  is  recorded  as  is  provided  with 
respect  to  deeds,  or  the  inhabitants  of  any  island  or  adjacent 
islands,  or  parts  thereof,  or  of  such  island  or  islands  or  parts 
thereof,  and  adjacent  territory,  may  obtain  the  organization 
of  a  village  or  hamlet,1  in  the  manner  provided  in  this  title; 
and  when  such  village  or  hamlet  is  organized  upon  any  island 
or  islands,  it  may  be  done  without  reference  to  the  number  of 
permanent  inhabitants  embraced  within  such  territory,  and 
without  such  plat  having  been  first  made ;  provided,  that  no  cor- 
poration under  this  chapter  shall  embrace  within  its  limits  the 
grounds  or  improvements  of  any  county  or  city  infirmary.2  [92 
v.  26;  73  v.  165,  §  9 ;  76  v.  116,  §  1.] 

(1)  See  note,  "Status  of  Ham-  Construction  of  these  provi- 
lets,"  under  §  J.  of  the  Code.  sions. —  The     provisions     of     Title 

(2)  Suit  to  test  right.— Wheth-  XII,  Div.  2,  Chap.  2,  are  to  be  con* 
er  a  suit  in  quo  warranto  will  lie  strued  in  connection  with  Title  Xll„ 
to  test  the  right  of  the  people  of  a  Div.  2,  Chap.  5,  and  both  are  to  be 
certain  locality  to  be  a  municipal  construed  as  one  act.  Shugars  ▼. 
corporation,  quere.     State  ex  rel.  v.  Williams,  50  0.  S.  297. 

Newark,  57  O.  S.  430. 

Sec.  1554  R.  S.  [How  application  made.]  Application  for 
such  purpose  shall  be  made  by  petition,  which,  except  as  provid- 
ed in  the  last  preceding  section,  shall  be  signed  by  not  less  than 
thirty  electors,  residing  within  the  proposed  corporate  limits, 
and  addressed  to  the  county  commissioners ;  and  the  same  shall 
be  accompanied  by  an  accurate  map  of  the  territory.1  [71  v. 
65,  §  10;  66  v.  150,  §  11.] 

( 1 )   Title  of  Petition. —  A  paper  contents    of    the    paper    should    be 

filed   as   a  petition   and  treated   as  looked  at,   to  ascertain  what  it  is, 

such,  although  styled  "  Amended  Pe-  and  not  merely  its  title.     Turpin  v. 

tition"    is    a    sufficient    compliance  Hagerty,  12  Dec.  161,  (aff'd  69  O.  S. 

with  the  statute.    The  character  and  534). 

Sec.  1555  R  S.  [Petition:  what  it  shall  contain.]  The  peti- 
tions shall  contain  the  matters  following:  1.  An  accurate  de- 
scription 1  of  the  territory  embraced  within  the  proposed  cor- 
poration, and  it  may  contain  adjacent  territory  not  laid  off  into 


Code    §    5]  CREATION    AND    INCORPORATION.  11 

lots;  2.  The  supposed  number  of  inhabitants  residing  in  the 
proposed  corporation;  3.  Whether  the  corporation  desired  is  a 
village  or  hamlet  ;2  4.  The  name  proposed ;  and  5.  The  name  of 
some  person  to  act  as  agent  for  the  petitioners,  and  more  than 
one  agent  may  be  named  therein.       [66  v.  150,  §  11.] 

(1)   Plat  from  Public  Records,  tual  measurements  reveal  some  dis- 

—  A    map    and    description    taken  erepancies   in   the  map.     Turpin   v. 

from  the  public  records  as  they  had  J^gerty,  12  Dec.  161    (aflTd  69  O.  S. 

-  ,    •  .        „  .        ,  534.    See  also  Wright  v.  Oberlin,  23 

stood  for  years,  is  sufficient  to  com-  q   A     kqq 

ply  with  the  requirement  of  an  ac-  (2)    See    note   "Status    of  Ham- 

curate  description,  even  though  ac-      lets  "  under  §  1  of  the  Code. 


FORM  OF  PETITION  FOR  INCORPORATION  OF  VILLAGES. 

To  the  Board  of  Commissioners  of  the  County  of , 

State  of  Ohio: 

The  undersigned,   being  thirty    [or  more]    electors  residing  within  the 

following  described  territory,  situated  in County, 

State  of  Ohio,  to-wit: 

(Here  give  an  accurate  description  of  territory  embraced  within  the  pro- 
posed corporation)  ;  an  accurate  map  of  which  territory  is  attached  hereto; 
respectfully  represent 

That  all  [or  a  part]  of  said  territory  has  been  laid  off  into  village  lots, 
a  plat  of  which  territory  so  laid  off,  has  been  acknowledged  and  recorded 
as  is  provided  with  respect  to  deeds  [or  which  territory  has  been  surveyed 
and  platted  by  an  engineer  who  has  certified  thereon,  under  oath  that  the 
same  is   correct] ; 

That  the  territory  above  described  does  not  embrace  within  its  limits 
the  grounds  or  improvements  of  any  county  or  city  infirmary; 

That  the  number  of  inhabitants  now  residing  in  said  territory  is  about 


.  And  respectfully  petition  your  honorable  body  that  said  territory  may 
be  organized  into  a  village,  in  the  manner  provided  by  law,  to  be  named  the 

"  Village  of   ";  and   and    

are  hereby  designated  as  agents  for  the  undersigned  to  act  for  them  in  all 
matters  before  your  honorable  body  relative  to  this  petition  and  to  the  or- 
ganization of  the  said  territory  into  the  said  village. 

(This  must  be  signed  by  at  least  30  electors  residing  in  the  territory  to 
be  organized  into  a  village.) 

A  map  of  the  territory  described  marked  "  Map  of  territory  to  be  organ- 
ized into  the  village  of ,"  should  be  attached  "to  the 

petition. 

The  form  given  may  be  adapted  to  a  petition  for  the  incorporation  of 
territory  on  an  island  or  islands.  In  such  case  no  map  need  accompany 
the  petition,  and  the  reference  to  the  number  of  inhabitants  may  be 
omitted. 


12  THE    OHIO     MUNICIPAL    CODE.  [Code    §    5 

Sec.  1556  R.  S.  [Presentation  to  commissioners:  time  of  hear- 
ing; notice.]  The  petition  shall  be  presented  to  the  board  of 
commissioners  at  a  regular  session  thereof,  and  when  so  pre- 
sented the  board  shall  cause  it  to  be  filed  in  the  office  of  the 
county  auditor,1  where  it  shall  be  subject  to  the  inspection  of 
any  person  interested ;  and  the  commissioner|  shall  then  fix  the 
time  and  place  for  hearing  the  petition,  and  communicate  the 
same  to  the  agent  of  the  petitioners,  which  time  shall  not  be 
less  than  sixty  days  after  such  filing;  and  thereupon  the  agent 
shall  cause  a  notice  containing  the  substance  of  the  petition, 
and  the  time  and  place  where  the  same  will  be  heard,  to  be  pub- 
lished in  some  newspaper  printed  and  of  general  circulation  in 
the  county,  for  the  period  of  six  consecutive  weeks,  and  cause 
a  copy  of  the  notice  to  be  posted  in  a  conspicuous  place  within 
the  limits  of  the  proposed  corporation,  not  less  than  six  weeks 
prior  to  the  time  fixed  for  such  hearing.2      [66  v.  150,  §  12.] 

( 1 )  Filing  with  county  auditor.  tory  to  a  village  on  its  application, 
—  Purpose  of  provision  requiring  must  be  posted  on  the  territory  to 
petition  to  be  filed  in  office  of  coun-  be  annexed.  Franklin  v.  Croll,  31 
ty   auditor   was   to    provide   a    safe  O.  S.  647.     See  §  1590  R.  S. 

place  for  deposit  and  not  as  addi-  Adjourned  meetings  of  com- 
tional  notice  of  the  hearing,  and  a  missioners. —  Adjourned  meetings 
failure  so  to  file  the  petition,  does  of  the  county  commissioners  are  con- 
not  deprive  the  board  of  jurisdiction  tinuations  of  the  regular  sessions, 
to  proceed.  Pollock  v.  Toland,  25  C.  in  so  far  as  the  requirements  of 
C.  75;  1  C.  C.   (N.  S.)  315.  this  section  are  concerned.      Turpin 

(2)  Posting  of  notice.— The  no-  v.  Hagerty,  12  Dec.  161,  (aff'd  69  O. 
tice    here    required   when   made   ap-  S.  534). 

plicable  to  the  annexation  of  terri- 

FORM  OF  NOTICE  OF  PETITION. 
LEGAL  NOTICE. 

Notice  is  hereby  given  that  on 19    . .,  there  was  presented 

to  the  Board  of  Commissioners  of  the  County  of   ,  State 

of  Ohio,  a  petition  signed  by  thirty  [or  more]  electors  residing  within  the 

following  described  territory  in  the  County  of ,  State  of  Ohio, 

to-wit : 

(Here  copy  description  of  territory  given  in  the  petition),  and  repre- 
senting that  (here  copy  the  representations  in  the  petition)  ;  and  praying 
therein  that  said  territory  may  be  organized  into  a  village  to  be  named  the 

"  Village  of ,"  which  petition  is  now  on  file  in  the  office 

of  the  auditor  of County ;  and  designating  the  undersigned 

to  act  as  the  agents  of  the  petitioners,  as  required  by  law. 

The  "said  Board   of  Commissioners  has   fixed. 19    . .,   at. .  . . 

o'clock .... M.,  as  the  time  for  hearing  said  petition    (not  less  than  sixty 

days  after  petition  is  filed)  at  the  office  of  the  commissioners  in 

( here  insert  place ) . 

(To  be  signed  by  the  designated  agent  or  agents.) 

This  notice  should  be  published  in  some  paper  printed  and  of  general 
circulation  in  the  county,  or  if  none  such,  then  in  some  paper  of  general 
circulation  in  the  county  (see  §  1537  R.  S,)  for  six  consecutive  weeks 
prior  to  the  time  set  for  hearing,  and  should  aiso  be  posted  for  the  same 


Code  §  5]  "   CREATION  AND  INCORPORATION.  13 

length  of  time  at  some  conspicuous  place  within  the  limits  of  the  proposed 
corporation. 

Sec.  1557  R.  S.     [Hearing  before  the  commissioners.]         The 

hearing  shall  be  public,  and  may  be.  adjourned  from  time  to 
time,  and  from  place  to  place,  according  to  the  discretion  of 
the  commissioners,  and  any  person  interested  may  appear,  in 
person  or  by  attorney,  and  contest  the  granting  of  the  prayer  of 
the  petition,  and  any  affidavits  presented  in  support  of  or 
against  the  prayer  of  the  petition  shall  be  considered  by  the 
commissioners,  and  the  petition  may  be  amended  by  their  leave ; 
but  if  any  amendment  is  permitted,  whereby  territory  not 
before  embraced  is  added,  the  commissioners  shall  appoint 
another  time  for  the  hearing,  of  which  notice  shall  be  given,  as 
specified  in  the  last  preceding  section.1      [66  v.  151,  §  13.] 

(1)  Applies  to  annexation  pro-  Amendment   to   cure  error   in 

ceedings. —  This  section  applies  to  description   which   merely    corrects 

the  procedure  in  case  of  annexation  omission  of  one  course  in  boundary 

of  territory  to  a  village    (§§   1589-  may  be  made  without  additional  no- 

1615  R.  S.)  as  well  as  to  the  case  of  tice.     Pollock  v.  Toland,  1  C.  C.  (N. 

organization  of  a  village.     Shugars  S.)   315;  25  C.  C.  75. 
v.  Williams,  50  O.  S.  297. 

Sec.  1558  R.  S.  [Order  for  organization.]  If  the  commis- 
sioners, upon  such  hearing,  find  that  the  petition  contains  all 
the  matters  required,  that  its  statements  are  true,  that  the 
name  proposed  is  appropriate,  that  the  limits  of  the  proposed 
corporation  are  accurately  described,  and  are  not  unreasonably 
large  or  small,  that  the  map  or  plat  is  accurate,  that  the  persons 
whose  names  are  subscribed  to  the  petition  are  electors  residing 
on  the  territory,  that  notice  has  been  given  as  required,  that 
there  is  the  requisite  population  for  the  proposed  corporation, 
and  if,  moreover,  it  seems  to  the  commissioners  right  that  the 
prayer  of  the  petition  be  granted,  they  shall  cause  an  order  to 
be  entered  on  their  journal  to  the  effect  that  the  corporation 
may  be  organized.      [66  v.  151,  §  14.] 

FORM  OF  ORDER  OF  ORGANIZATION. 

The  Board  of  Commissioners  of  the  County  of proceeding 

this  day  to  hear  the  matter  of  the  petition  of and  others 

to  obtain  the  organization  of  the  territory  in  their  petition  described,  into 
a  village,  in  accordance  with  law,  and  having  in  open  meeting,  heard  all 
persons  desiring  to  be  heard  for  or  against  the  granting  of  said  petition, 
and  considered  the  affidavits  presented  with  reference  thereto,  and  being 
fully  advised,  find  that  said  petition  contains  all  the  matter  required  by 
law;  that  its  statements  are  true;  that  the  name  of  said  proposed  village, 
which  is  given  in  the  petition,  is  appropriate;  that  the  limits  of  the  pro- 


14  THE    OHIO    MUNICIPAL    CODE.  *    [Code    §    5 

posed  corporation  are  accurately  described  and  are  not  unreasonably  large 
or  small;  that  the  map  of  the  same,  filed  with  the  petition,  is  accurate; 
that  a  sufficient  number  as  required  by  law  of  the  persons  whose  names 
are  subscribed  to  the  petition,  are  electors  residing  within  the  territory 
described  in  the  petition;  that  the  required  legal  notice  of  the  petition  has 
been  given,  and  that  the  population  of  said  proposed  corporation  is 
,  which  is  a  sufficient  number ; 

And  it  further  appearing  to  the  Board  that  it  is  right  and  proper  that 
said  petition  should  be  granted,  it  is  hereby  ordered  that  the  prayer  of  said 
petition  be  granted,  and  that  the  territory  described  in  said  petition  may 

be  organized  into  a  village  to  be  known  as  the  "  Village  of ," 

as  prayed  for  in. the  petition,  and  that  a  certified  transcript  signed  by 
a  majority  of  this  board  of  all  the  orders  and  proceedings  of  this  board 
relative  to  said  petition  and  hearing  thereon,  together  with  said  petition, 
and  map  attached  thereto,  and  all  papers  on  file  relating  to  said  matter, 
be  transmitted  at  once  to  the  recorder  of  the  county. 

(If  the  petition  is  rejected  the  form  may  be  adapted  to  suit  this  con- 
tingency. ) 

Sec.  1559  R.  S.  [Order  to  be  entered  on  journal;  papers  filed 
with  recorder.]  The  commissioners  shall  cause  to  be  entered 
on  their  journal  all  their  orders  and  proceedings  in  relation 
to  such  incorporation,  and  they  shall  cause  a  certified  transcript 
thereof,  signed  by  a  majority  of  them,  to  be  delivered,  together 
with  the  petition,  map,  and  all  other  papers  on  file,  relating  to 
the  matter,  to  the  recorder  of  the  county,  at  the  earliest  time 
practicable.      [66  v.  151,  §  15 ;  66  v.  152,  §  19.] 

Sec.  1560  R.  S.  [When  recorder  to  make  record.]  The  re- 
corder shall  file  the  transcript  and  other  papers  in  his  office,  and 
at  the  expiration  of  sixty  days  thereafter,  unless  enjoined  as 
hereinafter  provided,  he  shall  make  a  record  of  the  petition, 
transcript,  and  map  in  the  proper  book  of  records,  and  preserve 
in  his  office  the  original  papers  delivered  to  him  by  the  com- 
missioners, certifying  thereon  that  the  transcript,  petition,  and 
map  are  properly  recorded.      [66  v.  151,  §  16.] 

Sec.  1561  R.  S.  [Name;  transcript  of  record;  judicial  notice 
taken  of  corporation.]  When  the  record  is  made,  the  corpora- 
tion shall  be  deemed  the  village  of ,  or  the  hamlet *  of , 

as  the  case  may  be,  to  be  organized  and  governed  under  the  pro- 
visions of  this  title ;  and  thereupon  the  recorder  shall  make,  and 
certify  under  his  official  seal,  two  transcripts  of  the  record,  one 
of  which  he  shall  forward  to  the  secretary  of  state,  and  the 
other  deliver,  on  demand,  to  the  agent  of  the  petitioners,  with 
a  certificate  thereon  that  the  duplicate  has  been  forwarded  to 


Code    §    5]  CREATION    AND    INCORPORATION.  15 

the  secretary  of  state;  and  when  any  municipal  corporation  is 
organized  by  the  election  of  its  officers,  notice  of  its  existence 
shall  be  taken  in  all  judicial  proceedings.  \_Q6  v.  152,  §§  17, 
18.] 

(I)    See   note,    "Status   of   Hamlets,"  under  §  1  of  the  code. 

Sec.  1561a  R.  S.  [Petition  to  township  trustees  for  incorpora- 
tion.] When  the  inhabitants  of  any  territory  or  portion  thereof 
desire  that  such  territory  shall  be  incorporated  into  a  village 
or  hamlet 1  they  shall  make  application  to  the  trustees  2  of  the 
township  [in  which]  the  territory  is  located,  or  if  the  territory 
is  located  in  more  than  one  township,  to  the  trustees  of  the 
township  in  which  the  majority  of  the  said  inhabitants  reside, 
by  petition,  signed  by  at  least  30  electors  thereof,  a  majority  of 
whom  shall  be  freeholders.  Said  petition  shall  be  accompanied 
by  an  accurate  map  3  of  the  territory,  and  shall  contain  in  addi- 
tion to  the  matter  set  forth  in  §  1555  of  the  Revised  Statutes 
of  Ohio,  the  request  of  the  petitioners  that  an  election  be  held 
to  obtain  the  sense  of  the  electors  upon  such  incorporation  and 
such  petition  may  be  presented  at  a  regular  or  special  meeting 
of  the  township  trustees.      [94  v.  18;  92  v.  333.] 

(1)  See  note,  "Status  of  Ham-  must  act  on  the  one  filed  first,  and 
lets,"  under  §  1  of  the  code.  no  further  action  can  be  taken  until 

(2)  Filing  petition. —  The  clerk  that  petition  is  disposed  of;  and 
of  the  township  is  the  clerk  of  its  mandamus  will  lie  in  such  case  to 
board  of  trustees  and  the  petition  compel  the  trustees  to  act  on  the 
and  map  are  sufficiently  filed  and  first  petition.  State  ex  rel.  v.  Mitch- 
presented  to  the  township  trustees,  ell,  22  C.  C.  208. 

if    filed    with    the    township    clerk.  Purpose   of   the    section. —  The 

State  ex  rel.  v.  Mitchell,  22   C.  C.  purpose  of  the  statute  was  to  allow 

208.  a  part  of  a  township  to  be  formed 

The  fact  that  the  petition  and  into  a  municipal  corporation,  and  it 
map  were,  after  being  filed,  returned  is  against  public  policy  to  form  the 
to  the  person  filing  as  a  matter  of  entire  township  into  such  corpora- 
convenience  in  carrying  it  to  the  tion  in  order  to  defeat  this  purpose, 
board  meeting,  would  not  invalidate  State  ex  rel.  v.  Mitchell,  22  C.  C. 
the  filing.     lb.  208. 

Time  to  consider  petition,  must  (3)   Defective      map. —  If      the 

be  allowed  trustees,  and  mandamus,  map  filed  is  not  accurate  it  may  be 

before  a  week  has  elapsed,  will  not  supplemented  by  a  more  perfect  one, 

lie  to  compel  action.     State  ex  rel.  before  action  is  taken  by  the  trust- 

v.  Trustees,  19  C.  C.  742.  ees.     State  ex  rel.  v.  Mitchell,  22  C. 

Rival  petitions. —  Where  two  le-  C.  208. 
gal  petitions  are  filed  the  trustees 

FORM  OF  PETITION  TO  TOWNSHIP  TRUSTEES  FOR  INCORPORA- 
TiON  OF  VILLAGE. 

To  the  Trustees  of  the  Township  of ,  State  of  Ohio: 

The  undersigned,  being  thirty  [or  more]  electors,  a  majority  of  whom 
are  freeholders  and  all  of  whom  reside  within  the  following  described  terri- 


16  THE    OHIO     MUNICIPAL    CODE.  [Code    §    5 

tory  situated  within  the  County  of ,  State  of  Ohio,  to-wit: 

(Here  insert  accurate  description  of  territory  embraced  within  the  pro- 
posed corporation)  j  an  accurate  map  of  which  territory  is  attached 
hereto,  respectfully  represent  that  the  number  of  inhabitants  residing 
within  said  territory  is and  respectfully  petition  your  honor- 
able body  that  said  territory  may  be  organized  into  a  village  in  the  manner 
provided  by  law,  and  that  the  name  of  said  village  may  be  the  "Village 

of ,"  and  hereby  designate and 

their  agents  to  act  for  them  in  all  matters  relating  to  the  hearing  upon 
this  petition  and  in  other  matters  relating  to  the  incorporation  of  said 
territory  into  a  village;  and  further  petition  your  honorable  body  that  an 
election  may  be  ordered  to  obtain  the  sense  of  the  electors  of  said  territory 
upon  the  question  of  its  incorporation  into  a  village  as  prayed  for  in  this 
petition. 

(This  petition  must  be  signed  by  at  least  thirty  electors  residing  in  the 
territory  to  be  organized  into  a  village,  a  majority  of  whom  must  be  free- 
holders. ) 

(A  map  of  the  territory  described,  marked  "Map  of  territory  to  be  or- 
ganized in  the  village  of ,"  should  be  attached  to  the  petition. ) 


Sec.  1561b  R.  S.  [Procedure  upon  receipt  of  petition.]  When 
the  township  trustees  receive  the  petition,  together  with  the 
proof  that  the  persons  who  signed  it  are  electors,  and  reside 
within  the  limits  of  the  proposed  incorporation,  and  that  a 
majority  of  them  are  freeholders,  they  shall  then  make  and 
declare  that  such  territory  shall,  with  the  assent  of  the  qualified 
voters  thereof  as  hereinafter  provided,  be  an  incorporated  vil- 
lage or  hamlet 1  by  the  name  specified  in  the  petition  aforesaid, 
and  they  shall  also  include  in  such  order,  a  notice  for  the  elec- 
tion by  the  qualified  voters,  residents  in  said  territory,  at  a 
convenient  place  therein  to  be  by  them  named,  on  some  day 
within  fifteen  days  thereafter,  to  determine  whether  such  terri- 
tory shall  be  incorporated,  and  said  township  trustees  shall 
give  ten  days'  notice  of  such  election  by  publication  in  a  news- 
paper of  general  circulation  in  such  territory,  and  cause  written 
or  printed  notices  thereof,  to  be  posted  in  three  or  more  public 
places  in  said  territory  proposed  to  be  incorporated.  [92  v. 
333.] 

( 1 )   See   note,    "  Status   of    Hamlets,"  under  §  1  of  the  code. 

FORM  OF  FINDING  AND  ORDER  OF  TRUSTEES. 

Whereas,  A  petition  has  been  presented  to  the  trustees  of  the  township 

of ,  County  of ,  signed  by and  others, 

praying  that  the  following  described  territory:    (Here  copy  description  of 


Code  §  5]     CREATION  AND  INCORPORATION.  17 

territory  given  in  the  petition),  may  be  incorporated  into  a  village  as  pro- 
vided by  law;  and 

Whereas,  Said  trustees  after  hearing  all  evidence  submitted  are  fully 
satisfied  that  the  persons  who  signed  the  said  petition  are  electors  residing 
within  the  territory  proposed  to  be  incorporated  into  a  village  and  that  a 
majority  of  them  are  freeholders  therein; 

Now  therefore  be  it  Resolved,  That  the  said  territory  be,  and  the  same 
is  hereby  made  and  declared  to  be  an  incorporated  village  by  the  name  of 

the  "  Village  of ,"  with  the  assent  of  the  qualified  voters 

thereof. 

Sec.  2.     That  an  election  be  held  on  the day  of 19 

(this  date  must  be  within  fifteen  days  after  the  date  of  the  resolution), 
to  obtain  the  sense  of  the  electors  of  said  territory  on  the  question  of  in- 
corporation of   said   territory  into  the  village  of and  that 

such  election  be  held  at  (here  insert  place  of  holding  election). 

Sec.  3.     That  notice  of  the  time  and  place  of  holding  such  election  be 

given  by  publication  in ,  a  newspaper  of  general  circulation 

in  said  territory  and  by  posting  written  [or  printed]  notices  thereof  in 
three  or  more  public  places  in  said  territory  proposed  to  be  incorporated. 
(The  notice  must  be  for  a  period  of  ten  days.) 

Passed  this day  of 19    ...      ( To  be  signed  by  the  Trustees 

of  the  Township.     Attested  by  Clerk.) 

FORM  OF  NOTICE  OF  ELECTION. 
LEGAL  NOTICE. 

Notice  is  hereby  given  that  on  the day  of at 

( here  insert  place  of  holding  election ) ,   in  the  township  of , 

County  of ,  an  election  will  be  held  to  determine  whether  the 

following   described  territory   shall   be   incorporated   into  a  village  to  be 

known  as  the  "  Village  of ,"  to-wit :    ( Here  copy  description  of 

territory  given  in  the  petition.) 

By  order  of  the  trustees  of  the  township  of (to  be  signed 

by  the  trustees  of  the  township,  an  d  attested  by  the  clerk ) . 

Sec.  1561c  R.  S.  [Election  upon  question;  injunction;  petition 
for  error.]  The  township  trustees  shall  be  judges  of  the  elec- 
tion, and  the  township  clerk  shall  be  clerk  thereof,  and  the 
election  shall,  as  far  as  practicable,  be  conducted  in  the  manner 
prescribed  for  the  election  of  township  officers,  and  the  ballot 
shall  contain  the  words  "  For  incorporation  "  and  "  Against 
incorporation,"  aiid  if  a  majority  of  the  ballots  cast  at  such 
election  shall  contain  thereon  the  words  "  Against  incorpora- 
tion," the  voters  of  such  territory  shall  be  deemed  not  to  have 
assented  to  the  incorporation  thereof,  and  no  further  proceed- 
ings shall  be  had  in  relation  thereto,  but  this  shall  not  be  a  bar 
to  other  proceedings  for  the  same  purpose ;  but  if  a  majority  of 


18  THE    OHIO    MUNICIPAL    CODE.  [Code    §    5 

the  ballots  cast  shall  have  thereon  the  words  "  For  incorpora- 
tion/ '  the  township  trustees  shall  cause  to  be  entered  on  their 
journal,  a  minute  of  all  their  proceedings,  the  number  of  votes 
cast  at  the  election,  the  number  of  votes  cast  for  incorporation, 
and  the  number  cast  against  incorporation,  and  they  shall  then 
declare  that  said  territory  shall  from  that  time  be  deemed  an 
incorporated  village  or  hamlet,1  and  shall  make  an  order  de- 
claring that  such  village  or  hamlet  has  been  incorporated  by 
the  name  adopted,  and  the  trustees  shall  make  a  certified  trans- 
cript of  the  journal  entries  of  all  their  proceedings,  together 
with  their  original  petition  and  plat,  and  a  majority  of  them 
having  signed  it,  they  shall  deliver  the  same  to  the  county 
recorder,  who  shall  forthwith  make  a  record  of  the  petition, 
transcript  and  plat  or  map,  in  the  public  book  of  records,  and 
preserve  in  his  office  the  original  papers  delivered  to  him  by  the 
trustees,  and  certify  thereon  that  the  transcribed  petition  and 
map  are  properly  recorded.  When  the  recorder  has  so  made 
said  record,  he  shall  certify  and  forward  to  the  secretary  of 
state,  a  transcript  of  the  same.  The  corporation  shall  then  be 
a  village  or  hamlet,  as  the  case  may  be,  under  the  name  adopted 
in  the  petition,  with  all  powers  and  authorities,  and  be  recog- 
nized as  such,  the  same  as  if  such  incorporation  had  been 
organized  under  chapter  2,  division  2,  title  12  of  the  Eevised 
Statutes  of  Ohio,  but  no  injunction  shall  be  brought,  as  pro- 
vided in  §  1562  of  the  Eevised  Statutes  of  Ohio,  unless  the  same 
be  instituted  within  ten  days  from  the  filing  of  the  papers  with 
the  county  recorder ;  provided,  however,  that  the  right  of  peti- 
tion to  the  court  of  common  pleas  for  error,  shall  exist  as  is 
provided  for  in  the  following  sections  of  this  chapter.2  [92  v. 
334.] 

( 1 )  See   note,    "  Status   of    ham-  ated  ordered  by  the  township  trust- 
lets,"  under  §  1  of  the  code.  ees  can  not  be  granted.    Lawrence  v. 

(2)  Injunction     against     dec-  Mitchell,  8  N.   P.  8.     See  State  v. 
tion. —  In    view    of    the    statutory  Mitchell,  22  C.  C.  208. 

remedies  provided  in  §  1561  c.  R.  S.,  Constitutionality.—  §§      1561a, 

by  which  the  right  to  petition  the  15616,  "161c,  R.  S.,  authorizing  in- 

Court    of    Common    Pleas    for    re-  corporations    under   proceedings   be- 

view    of    proceedings    had    for    in-  fore   township   trustees   is   not   un- 

corporation  is  given,  an  injunction  constitutional    as    a    delegation    of 

to  restrain  the  election  by  the  vot-  power  by  the  Legislature.     lb. 
ers  of  the  territory  to  be  incorpor- 

FORM  OF  DECLARATION  AND  ORDER  OF  TRUSTEES. 

Whereas,  An  election  was  held  in  the  township  of !  County 

of ,  State  of  Ohio,  on  the day  of 190 .. ,  to  de- 


Code    §    5]  CREATION    AND    INCORPORATION.  19 

termine  whether  the  following  described  territory   shall  be  incorporated 

into  a  village  to  be  known  as  the  "  Village  of ,"  to-wit:    (Hera 

copy  description  of  territory  given  in  the  petition  and  election  notice)  ;  and 

Whereas,  At   said  election votes  were  cast,    of   which 

were  in  favor  of  said  incorporation  and of  which  were  against  the 

same,  a  majority  being  in  favor  of  said  incorporation, 

Now  therefore,  it  is  hereby  ordered  and  declared  that  said  territory  shall 
henceforth  be  deemed  an  incorporated  village,  and 

It  is  further  ordered  and  declared  that  such  village  has  been  incorpo- 
rated by  the  name  of  the  "  Village  of ,"  and  a  certified  tran- 
script of  the  journal  entries  of  all  the  proceedings  of  this  board  in  this 
matter,  together  with  the  original  petition  and  plat,  shall  be  delivered  to 
the  Recorder  of  the  County  of 

(This  should  be  signed  by  the  trustees  and  attested  by  the  clerk.) 

Sec.  1562  R.  S.  [Injunction  against  recorder.]  Any  person 
interested  may,  within  sixty  days  from  the  filing  of  the  papers 
with  the  recorder,  as  above  provided,  make  application  by  pe- 
tition to  the  court  of  common  pleas,  or,  if  during  vacation,  to 
a  judge  thereof,  setting  forth  the  errors  complained  of,  or  the 
inaccuracy  of  the  boundaries,  or  that  the  limits  of  the  proposed 
corporation  are  unreasonably  large  or  small,  or  that  it  is  not 
right,  just,  or  equitable  that  the  prayer  of  the  petition  presented 
to  the  board  of  commissioners  be  granted,  or  containing  any  or 
all  of  such  averments,  and  praying  an  injunction  restraining 
the  recorder  from  making  the  record  and  certifying  the  trans- 
cript, as  above  required.1      [92  v.  196;  66  v.  152,  §  20.] 

( 1 )  Scope  of  injunction. —  In  an  rors  complained  of,  and  should  not 
injunction  under  this  section,  the  state  merely  that  errors  were  corn- 
case  made  before  the  commissioners  mitted.  Hulbert  v.  Mason,  29  O.  S. 
cannot  be  retried  upon  its  merit,  and  562. 

an  injunction  cannot  be  allowed  ex-  Interest  Required. —  It  is  not 
cept  for  errors  or  irregularity  in  the  necessary  that  plaintiff  should  have 
proceedings  or  any  inaccuracy  in  the  a  direct,  pecuniary  interest  in  prop- 
description  of  territory  sought  to  be  erty  within  the  proposed  corpora- 
incorporated.  Hulbert  v.  Mason,  29  tion  to  constitute  a  "  person  inter- 
O.  S.  562.  ested,"  and  one  residing  and  owning 

No  appeal. —  No  appeal  lies  from  property   two   miles   distant   there- 

the  judgment  of  the  court  or  judge,  from  whose  taxes  will  be  increased, 

allowing  or  refusing  the  injunction.  has  such  an  interest.     Hall  y.  Si§- 

The  application  to  the  court  is  not  grist,  13  Dec,  46. 
in  the  nature  of  a  bill  in  equity  or  Collateral    attack. —  The    order 

of  a  civil  action,  but  of  a  proceeding  of  the  county  commissioners  though 

in  error.  Hulbert  v.  Mason,  29  O.  S.  subject  to  review  by  the  courts,  is 

562.  not  void,  and  cannot  be  collaterally 

Contents  of  petition. —  Petition  impeached.    Blanchard  v.  Bissell,  11 

should  set  forth  specifically  the  er-  0.  S.  96. 


20  THE    OHIO    MUNICIPAL     CODE.  [Code  §  5 

FORM    OF    PETITION    FOR    INJUNCTION. 
Court  of  Common   Pleas,.  .1 County,  Ohio. 


vs. 


Plaintiff, 

l    PETITION. 


Recorder  of  the  County 

of.. 

Defendant. 

Plaintiff  says  that  certain  territory  within  the  County  of 

[or  the  township  of ,  in  the  County  of ],  is  sought 

to  be  organized  into  an  incorporated  village  under  the  name  of  the  "Village 
of "5 

A  certified  transcript  of  the  proceedings  of  the  County  Commissioners 
[or  of  the  township  trustees]  in  relation  thereto,  together  with  the  petition 
for  such  incorporation,  and  all  maps  and  papers  relating  thereto  are  now 
in  the  hands  of  the  Recorder  of  this  County  for  record. 

Plaintiff  further  says  that  he  is  a  resident  of  the  territory  sought  to  be 
incorporated  as  aforesaid,  and  is  interested  in  the  matter  of  such  incor- 
poration. 

And  plaintiff  further  says  that  there  is  error  in  the  said  proceedings  in 
this,  to-wit:      (Here  state  specifically  the  errors  complained  of.) 

Wherefore,  plaintiff  prays  that  an  injunction  may  issue  restraining  the 
recorder  from  making  a  record  of  the  said  proceedings  and  certifying  the 
transcript  thereof  as  provided  by  law. 


[Verification. J  -  Attorney  for  Plaintiff. 

(If  suit  is  brought  to  prevent  incorporation  upon  petition  to  County 
Commissioners  the  same  must  be  filed  within  sixty  days  from  the  filing  of 
the  papers  with  the  recorder,  §  1562  R.  S. ;  if  to  prevent  incorporation  upon 
petition  to  township  trustees,  it  must  be  filed  within  ten  days  from  the 
filing  of  the  papers  with  the  recorder,   §  1561c,  R.  S.) 

Sec.  1563  R.  S.  [Proceedings  in  such  case.]  When  the  pe- 
tition is  filed,  the  person  filing  the  same  shall  give  notice  there- 
of, in  writing,  to  the  recorder  and  the  agent  of  the  petitioners 
for  the  corporation ;  and  the  recorder,  on  receiving  such  notice, 
shall  forthwith  transmit  to  the  clerk  of  the  court  where  the 
petition  for  injunction  is  pending,  all  the  papers  relating  to 
the  matter  on  file  in  the  recorder's  office ;  and  in  that  event,  no 
record  of  the  papers  shall  be  made  by  the  recorder,  or  transcript 
certified  by  him,  as  above  provided,  unless  he  receive  a  certifi- 
cate from  the  clerk  of  the  court,  showing  that  the  injunction 
has  been  denied.     [66  v.  152,  §§  21,  22.] 

FORM   OF   NOTICES   OF   PETITION. 

To  the  Recorder  of  the  County  of : 

You  are  hereby  notified  that  a  petition  has  been  filed  by  the  undersigned, 

on  the day  of 190 .  . ,  in  the  Court  of  Common  Pleas,  in  the 

County  of   ,  State  of  Ohio,  praying  therein  for  an  injunction 

restraining  you  from  making  a  record  of  the  proceedings  for  the  incorpora- 

tion  of  the  village  of or  certifying  transcripts  of  such  record. 

,  Plaintiff. 


Code  §  5]  CREATION    AND    INCORPORATION.  21 

To and ,  agents  of  the  petitioners  for  the  incorporation 

of  the  village  of : 

You  are  hereby  notified  that  a  petition  has  been  filed  by  the  under- 
signed on  the day  of 190.  .  .  .,  in  the  Court  of  Common  Pleas, 

of  the  County  of ,  State  of  Ohio,  praying  therein  for  an  in- 
junction  restraining  the  Recorder  of County  from   making   a 

record  of  the  proceedings  for  the  incorporation  of  the  village  of 

or  certifying  transcripts  of  such  record. 

,  Plaintiff. 

Sec.  1564  R.  S.  [Piling,  docketing  and  hearing  of  petition, 
and  judgment  thereon.]  The  court  or  judge  shall  cause  said 
petition  to  be  filed  and  docketed  in  the  office  of  the  clerk  of 
courts,  and  shall  hear  the  petition  at  such  time  as  he  shall 
appoint,  not  less  than  twenty  days  from  the  filing  of  the  same. 
And  upon  such  hearing  the  court  or  judge  may  hear  evidence 
upon  the  matters  and  things  averred  in  the  petition;  and  if, 
upon  such  hearing,  no  error  is  found  in  the  proceedings  before 
the  commissioners,  and  no  inaccuracy  in  the  boundaries,  and  if 
the  court  shall  further  find  that  the  limits  of  the  proposed  cor- 
poration are  not  unreasonably  large  or  small,  and  that  it  is 
right,  just  and  equitable  that  the  prayer  of  the  petition  pre- 
sented to  the  commissioners  be  granted,  the  petition  for  such 
injunction  shall  be  dismissed;  and  thereupon  the  clerk  shall 
return  the  papers  to  the  recorder,  with  a  certified  transcript  of 
the  order  of  the  court,  and  the  recorder  shall  immediately 
record  the  transcript  certified  by  the  commissioners,  the  peti- 
tion for  the  corporation,  the  map,  and  the  order  of  the  court, 
and  make,  forward  and  deliver  transcripts  as  above  provided ; 
but  if  error  is  found  in  the  proceedings,  or  if  the  boundaries 
are  found  to  be  so  inaccurately  described  as  to  render  indefi- 
nite or  uncertain  limits  or  extent  of  the  proposed  corporation, 
or  if  the  court  shall  find  that  the  limits  of  the  proposed  cor- 
poration are  unreasonably  large  or  small,  or  that  it  is  not  right, 
just  or  equitable  that  the  prayer  of  the  petition  presented  to 
the  commissioners  be  granted,  then  the  court  or  judge  shall 
make  an  order  enjoining  the  recorder  from  making  the  record ; 
provided  that  such  order  shall  not  be  a  bar  to  any  subse- 
quent application  to  the  commissioners  for  the  purpose  of 
effecting  such  incorporation.  And  the  court  or  judge  shall 
render  such  judgment  as  to  the  payment  of  the  cost  incurred 
in  such  proceeding  for  injunction  as  he  shall  deem  just  and 
equitable.     [92  v.  196;  66  v.  152,  §  23.] 

Sec.  lo65  R.  S.  [Election  of  officers.]  The  first  election  of 
officers  for  such  corporation  shall  be  at  the  first  annual  munici- 
pal election  after  its  creation,  and  the  place  of  holding  the 
election  shall  be  fixed  by  the  agent  of  the  petitioners,  and  notice 
thereof,  printed  or  plainly  written,  shall  be  posted  by  him  at 
three  or  more  public  places  within  the  limits  of  the  corpora- 
tion, at  least  ten  days  before  the  election;  which  election  shall 
be  conducted,  and  the  officers  chosen  and  qualified,  in  the  man- 


22  THE    OHIO    MUNICIPAL    CODE.  [Code  §  5 

ner  prescribed  for  the  election  of  township  officers :  provided, 
that  such  first  election  may  be  a  special  election  held  at  any 
time  not  exceeding  six  months  after  the  incorporation,  and  the 
time  and  place  of  holding  such  special  election  shall  be  fixed 
by  the  agent  aforesaid,  and  notice  thereof  shall  be  given  as  is 
required  in  this  section  for  the  annual  municipal  election.  [73 
v.  157,  §  24.] 

Sec.  1565a  R.  S.  [Division  and  transfer  of  township  funds 
when  a  village  is  created  out  of  portion  of  township  or  town- 
ships.] When  a  village  has  been  created  out  of  a  portion  of  a 
township,  or  portions  of  more  than  one  township,  under  the 
provisions  of  the  statutes  of  this  state  authorizing  the  creation 
of  villages,  a  proper  division  of  the  funds  for  township  pur- 
poses in  the  treasury,  or  in  the  process  of  collection,  of  the 
township  or  townships  from  which  the  territory  has  been  taken 
for  the  creation  of  said  village,  shall,  upon  application  of  said 
village  to  the  probate  court  of  the  county  in  which  such  terri- 
tory is  situated,  be  determined  and  ordered  by  said  court,  and 
the  share  to  which  said  village  is  found  entitled,  ordered  paid 
over  to  the  treasurer  of  the  village;  and  in  determining  the 
portion  of  said  funds  to  which  said  village  is  entitled,  the  in- 
debtedness of  said  township  or  townships  shall  be  taken  into 
consideration;  ten  days'  notice  of  such  hearing  shall  be  given 
by  the  treasurer  of  the  applicant  to  the  treasurer  of  the  town- 
ships whose  funds  are  sought  to  be  divided.  The  findings  and 
orders  of  the  probate  court  shall  be  final. 

[§  2.]  [To  what  villages  act  to  apply.]  The  provisions  of 
this  section  shall  apply  only  to  villages  created  after  July  1st, 
A.  D.  1905.     [1906,  April  11,  98  v.  129.] 

Sec.  1566  R.  S.  [When  territory  embraces  parts  of  more  than 
one  county.]  When  the  inhabitants  residing  upon  adjacent 
portions  of  territory,  in  two  or  more  counties,  laid  off  into 
village  or  hamlet  lots,  a  plat  or  plats  of  which  which  been  ac- 
knowledged and  recorded,  as  hereinbefore  required,  desire  the 
organization  of  such  territory  into  a  village  or  hamlet,  the  pe- 
tition therefor  shall  be  made  to  the  commissioners  of  the 
county  in  which  the  largest  number  of  qualified  voters  of  the 
proposed  corporation  reside,  and  a  statement  to  that  effect  shall 
be  set  forth  in  the  petition ;  and  the  transcript  of  the  proceed- 
ings of  the  commissioners,  and  the  map  or  plat  accompanying 
the  same,  shall  be  recorded  in  the  county  in  which  the  petition 
is  filed,  at  the  time  and  in  the  manner  provided  for  in  other 
cases;  and  the  recorder  of  such  county  shall,  within  ten  days 
thereafter,  make  a  certified  transcript  of  such  record  for  each 
of  the  other  counties  in  which  any  portion  of  the  territory  is 
situated,  and  forward  the  same  to  the  recorders  of  such  coun- 
ties, to  be  by  them  recorded  in  the  manner  that  the  original  pa- 
pers are  required  to  be  recorded.  [66  v.  153,  §25;  (S.  &  C. 
1552).] 


Code    §    5]  CREATION    AND    INCORPORATION.  23 

Sec.  1566a  R.  S.  [Incorporation  of  territory  surrounding  sum- 
mer resort,  etc.]  Any  territory  requiring  police  protection  and 
containing  a  population  of  not  less  than  fifty  persons  and  im- 
mediately surrounding  a  summer  resort,  park,  lake  or  picnic 
ground,  kept  regularly  for  such  outing  and  pleasure,  may  in- 
corporate by  setting  up  notices  of  an  election  in  three  of  the 
most  public  places  in  the  territory  proposed  to  be  included  in 
the  corporation  signed  by  five  citizens  and  electors  of  the  terri- 
tory. Said  notices  to  be  posted  at  least  ten  days  before  the 
election,  stating  time  and  place  where  such  election  shall  be 
held,  and  shall  contain  an  accurate  description  of  the  territory 
proposed  to  be  taken  into  the  incorporation.  The  election  shall 
as  far  as  practicable  be  conducted  in  the  manner  prescribed  for 
the  election  of  township  officers.  The  electors  present  shall 
choose  three  judges  and  two  clerks  from  the  electors  present 
to  act  as  judges  and  clerks  of  said  election,  and  the  ballot  shall 
contain  the  words :  "  For  incorporation  "  and  "  Against  in- 
corporatiom"  If  the  majority  of  the  ballots  cast  at  such  elec- 
tion shall  contain  the  words  "  For  incorporation,"  it  shall  be 
deemed  that  the  citizens  of  said  designated  territory  have  as- 
sented to  such  incorporation.  And,  if  the  majority  of  the 
ballots  cast  at  such  election  shall  contain  the  words  "  Against 
incorporation,"  it  shall  be  deemed  that  the  people  of  said 
designated  territory  shall  not  have  assented  to  the  incorpora- 
tion thereof.  Such  laws  governing  the  creation  and  regulation 
of  incorporated  villages  in  force  and  such  as  may  be  hereinafter 
enacted  shall  have  full  force  and  effect  in  so  far  as  are  not 
inconsistent  and  do  not  conflict  with  the  provisions  of  this  act. 
[95  v.  469.]1 

(1)   This  section  was  enacted  May       to  be   regarded   as   expressly   re-en- 
9,  1902,  as  a  supplement  to  §  1566       acted. 
R.  S.,  and  under  §  212  of  the  code  is 

Sec.  1567  R.  S.  [Proceedings  to  establish  or  review  same  as 
other  cases.]  In  all  other  respects,  the  proceedings  to  establish 
the  corporation,  or  review  the  action  of  the  commissioners, 
shall  be  as  provided  in  cases  where  all  the  inhabitants  residing 
on  tlje  territory  to  be  organized  into  such  corporation,  reside  in 
one  county.      [66  v.  153,  §  26.] 

Sec.  1568  It.  S.  [Power  of  officers  as  in  other  cases.]  When 
the  jurisdiction  of  municipal  officers  is  coextensive  with  the 
county  in  which  the  corporation  is  situated,  their  jurisdiction 
in  corporations  embracing  territory  of  more  than  one  county 


24  THE    OHIO     MUNICIPAL    CODE.  [Code    §    5 

shall  be  coextensive  with  each  of  the  counties  in  which  any 
part  of  such  territory  is  located.  [66  v.  153,  §  27;  (S.  &  C. 
1552).] 

Sec.  1569  R.  S.  [Fees  to  be  paid  in  advance.]  Each  officer 
shall  receive  for  the  services  required  of  him  under  this  division, 
the  same  fees  he  would  be  entitled  to  for  similar  services  in 
other  cases,  and,  unless  such  fees  are  paid  in  advance,  for 
services  under  this  chapter,  by  the  agent  of  the  petitioners,  of 
whom  demand  may  be  made,  and  by  some  person  interested  for 
services  under  other  chapters  of  this  division,  the  officer  shall 
not  be  required  to  perform  the  service.      [66  v.  153,  §  28.] 

Sec.  1569a  R.  S.     [Montgomery  county;  compensation  of  agent 

of  petitioners.]     [95  v.  411.] 1 

(1)  Though  this  section  was  en-  S.,  it  is  expressly  repealed  by  §  231 
acted  as  a  supplement 'to  §  1569  R.       of  the  code. 

Sec.  1570  R.  S.  [Proceedings  for  change  of  name.]  Whenever 
it  is  desirable  to  change  the  name  of  a  village  or  hamlet,  a 
petition  for  the  purpose,  subscribed  by  at  least  twelve  free- 
holders of  the  corporation,  setting  forth  the  reasons  why  such 
change  is  desirable,  shall  be  filed  in  the  court  of  common  pleas 
of  the  county  in  which  the  corporation,  or  the  larger  part  there- 
of, is  situate;  and  a  notice,  setting  forth  the  object  of  the 
petitioners,  and  the  time  when  and  place  where  the  petition 
will  be  heard,  shall  be  published  for  thirty  days  previous  to 
the  hearing,  in  a  newspaper  of  general  circulation  in  the  cor- 
poration.     [40  v.  28,  §§  2,  3;  S.  &  C.  1138.]1 

(1)    See  §§  5852  to  5857  R.  S.,  inclusive. 

Sec.  1571  R.  S.     [Power  of  court;  costs;  saving  rights,  etc.] 

The  court,  upon  being  satisfied  by  proof  that  the  prayer  of  the 
petitioners  is  just  and  reasonable,  that  notice,  as  required  in  the 
foregoing  section,  has  been  given,  that  at  least  three-fourths  of 
the  inhabitants  of  such  corporation  desire  the  change,  and  that 
there  is  no  other  municipal  corporation  in  the  state  with  the 
name  as  prayed  for,  may  order  such  change  to  be  made;  and 
the  clerk  of  the  court  shall  thereupon  tax  the  petitioners  with 
the  costs,  and  record  the  proceedings  in  a  book  to  be  kept  by 
him  for  the  purpose ;  provided,  that  such  change  shall  not  alteV 
or  affect  any  right,  liabilitv,  action,  or  right  of  action,  civil  or 
criminal.      [40  v.  28,  §§  1,  3,  4;  S.  &  C.  1138.] 


Code    §    6]  ANNEXATION    OF    TERRITORY.  25 

Sec.  1571a  E.  S.  [Error  in  proceedings  does  not  render  void  if 
tax  has  been  paid.]  No  error,  irregularity  or  defect  in  any 
proceeding  for  the  creation  of  a  municipal  corporation  shall 
render  it  invalid  if  the  territory  sought  to  be  incorporated  has 
been  recognized  as  such  corporation,  and  any  tax  levied  upon 
it  as  such  has  been  paid,  or  it  has  been  subjected  to  the  authority 
of  the  council  without  objection  from  its  inhabitants.  [1883, 
April  3:  80  v.  92.] 


3.     ANNEXATION  AND  DETACHMENT  OF  TERRI- 
TORY. 

Sec.  6.  [Statutes  Re-enacted.]  Territory  may  be  annexed 
to,  or  detached  from,  municipal  corporations,  in  the  manner 
now  provided  in  Title  XII,  Division  2,  Chapter  5,1  of  the 
Revised  Statutes  of  Ohio  and  as  also  provided  in  an  act  entitled 
"  An  act  to  provide  for  detaching  unplatted  farm  lands  from 
cities  and  incorporated  villages  and  for  attaching  the  same  to 
adjacent  townships,"  passed  April  23,  1902,  Ohio  Laws,  vol. 
95,  page  259. 

(1)   Title  XII,   Div.,   2,   Chap.  5, 
contains  §§   1589-1616  R.  S.,  inclu- 


Subdivision  1.     Annexation  of  Territory  on  Application 
of  its  Citizens. 

Sec.  1589  R.  S.  [Annexation  of  adjacent  territory;  petition 
therefor.]  The  inhabitants  residing  on  any  territory  adjacent1 
to  any  city  or  village  may,  at  their  own  option,  cause  such  terri- 
tory to  be  annexed  to  such  city  or  village,  in  the  manner  here- 
inafter stated.2  Application  for  such  purpose  shall  be  by 
petition,  addressed  to  the  commissioners  of  the  county  in  which 
such  territory  is  located,  signed  by  a  majority  of  the  adult 
freeholders  residing  on  such  territory,  and  shall  contain  the 
name  of  some  person  who  is  authorized  to  act  as  the  agent8  of 
the  petitioners  in  securing  such  annexation,  and  a  full  descrip- 
tion of  the  territory,  and  be  accompanied  by  an  accurate  map  or 
plat  thereof.4     [66  v.  264,  §§  679,  680.] 


26 


THE    OHIO     MUNICIPAL    CODE. 


[Code  §  6 


(1)  Adjacent  territory. —  Terri- 
tory on  the  other  side  of  a  navi- 
gable stream  would  be  contiguous  or 
adjacent  territory,  which  might  be 
annexed.  Blanchard  v.  Bissell,  1 1 
O.  S.  96. 

(2)  Constitutionality. —  Annex- 
ation of  territory  to  a  municipality 
is  not  unconstitutional  though  pri- 
vate property  in  the  annexed  terri- 
tory is  thereby  made  liable  for  taxes 
to  pay  prior  debts  of  the  municipal- 
ity and  though  the  owner  of  the 
property  so  taxed  might  not  have 
been  qualified  to  vote  on  the  ques- 
tion of  annexation,  because  a  non- 
resident. Powers  v.  Wood  Co.,  8  0. 
S.  285;  Blanchard  v.  Bissell,  11  O. 
S.  96. 

Consent  of  inhabitants  of  terri- 
tory to  be  annexed  is  not  necessary 
unless  required  by  statute  and  their 
remonstrance  will  not  invalidate  the 
annexation.  Blanchard  v.  Bissell, 
11  0.  S.  96. 

(3)  Agent. —  This  provision  held 
not  applicable  to  annexation  on  ap- 
plication of  a  corporation.  Pollock 
v.  Toland,  25  C.  C.  75;  1  C.  C.  (N. 
S.)  315. 

(4)  Effect  of  annexation. — 
School  district. —  A  school  district  is 
not  divided  because  a  part  of  it  is 
annexed  to  a  city  or  village.  State 
v.  Raine,  4  C.  C.  72  (aff'd  29  B. 
108.)  See  Hamlin  v.  State,  22  B. 
279. 

Roads. —  Public  roads  in  the  ter- 
ritory annexed  become  public  high- 
ways of  the  city  or  village,  without 
being  "  accepted  and  confirmed  by 
ordinance."  Steubenville  v.  King, 
23  0.  S.  610. 


Part  of  a  county  road  coming 
within  a  city  by  annexation  is  sub- 
ject to  the  city's  control  and  im- 
provement. R.  R.  Co.  v.  Defiance, 
10  C.  C.  27 ;"  and  city  may  assess 
for  its  improvement.  Ridenour  v. 
Saffin,  1  H.  464;  county  commission- 
ers can  not  sue  for  obstruction  of 
part  of  road  brought  within  a  city 
or  village.  R.  R.  v.  Comm'rs,  35  O. 
S.  1 ;  but  turnpike  company's  rights 
are  not  extinguished  without  appro- 
priation. Tp.  Co.  v.  Cincinnati,  4 
Rec.  325;  though  a  toll  gate  can- 
not lawfully  be  maintained  on  terri- 
tory brought  into  a  municipality  by 
annexation.  Turnpike  Co.  v.  Kelley, 
41    O.   S.    144. 

Justices  of  the  Peace. —  See  Reed 
v.  Maxfield,  32  B.  50;  State  v.  Da- 
vies,  12  C.  C.  218;  Pfeiffer  v.  Green, 
3   N.  P.    156. 

Taxation. —  When  the  boundaries 
of  a  municipality  are  extended  prior 
to  the  date  of  the  certification  of  the 
levy  of  municipal  taxes,  no  special 
provision  is  necessary  to  authorize 
the  levy  of  taxes  on  the  annexed 
property,  and  the  county  auditor 
may  be  compelled  by  mandamus,  on 
relation  of  the  municipality  to  levy 
on  the  annexed  property  the  munici- 
pal instead  of  the  township  tax. 
State  ex  rel.  v.  Craig,  21  C.  C.  13. 

When  annexation  complete. — 
On  the  passage  and  legal  publica- 
tion of  the  municipal  ordinance,  ac- 
cepting the  application  for  annexa- 
tion of  adjacent  territory,  such  ter- 
ritory becomes  a  part  of  the  munici- 
pality, although  the  map,  transcript 
and  other  papers  are  not  filed  until 
a  later  date.  State  ex  rel.  v.  Craig 
21  C.  C.  13. 
FORM  OF  PETITION  BY  INHABITANTS  FOR  ANNEXATION. 

To  the  Commissioners  of County,  State  of  Ohio: 

The  undersigned,  being  a  majority  of  the  adult  freeholders  residing  on 

the   following  described  territory  situated  in  the  County   of 

and  adjacent  to  the  city  [or  village]  of ,  to-wit: 

(Here  insert  accurate  description  of  territory  to  be  annexed.) 
An  accurate  map  of  which  territory  is  hereto  attached; 


Code  §  6] 


ANNEXATION    OF    TERRITOBY. 


27 


Respectfully  petition  that  the  said  above  described  territory  may  be  an 
jiexed  to  the  city  [or  village]  of 

And is  hereby  authorized  to  act  as  agent  of  the  petitioners 

to  securing  such  annexation. 

(To  be  signed  by  a  majority  of  the  adult  freeholders  residing  in  the  ter- 
ritory to  be  annexed.) 

A  map  marked  "  Map  of  territory  to  be  annexed  to  the  city  [or  village] 
of ,"  should  be  attached  to  the  petition. 


Sec.  1590  R.  S.  [To  be  presented  to  commissioners;  their 
duties;  duties  of  clerk  of  corporation.]  Such  petition  shall  be 
presented  to  the  board  of  commissioners  at  some  regular  session 
thereof,  and  when  so  presented  the  same  proceedings  shall  be 
had,  in  all  respects,  as  far  as  applicable,  and  the  same  duties 
in  respect  thereto  shall  be  performed  by  the  commissioners  and 
other  officers,  as  are  required  in  the  case  of  an  application  to 
be  organized  into  a  village  under  the  provisions  of  this  divi- 
sion ;  *  and  the  final  transcript  of  the  commissioners,  and  the 
accompanying  map  or  plat  a*hd  petition,  shall  be  deposited  with 
the  clerk  of  the  city  or  village  to  which  such  annexation  is  pro- 
posed to  be  made,  who  shall  file  the  same  in  his  office.2  [66  v. 
265,  §  681.] 


(1)  Sections  referred  to. —  This 
refers  to  §§  1553-1571a  R.  S.,  inclu- 
sive, supra. 

(2)  Construction  of  sections- — 

All  the  laws  (Chapters  2  and  5  of 
Division  2,  title  12  R.  S.)  relat- 
ing to  the  general  subject  of  creation 
of  villages  and  the  annexation  of  ter- 
ritory to  those  already  created  are 
to  be  treated  for  purposes  of  con- 
struction as  one  act.  Shugars  v. 
Williams,   50  0.  S.  297. 

The  course  of  procedure  at  the 
hearing  before  the  county  commis- 
sioners directed  by  §  1557  is  appli- 
cable also  to  such  proceedings  in  the 
case  of  annexation.     lb. 

Provisions  of  §  1556  R.  S.  requir- 
ing deposit  of  petition  with  county 
auditor  held  not  applicable  to  the 
case  of  proceedings  for  the  annexa- 
tion of  territory  on  the  application 
of  a  corporation.  Pollock  v.  Toland, 
1  C.  C.  (N.  S.)  315;  25  C.  C.  75. 

Amendment  of  petition. —  The 
authority  given  in  §   1557  R.  S.  to 


amend  the  petition  applies  also  to  a 
petition  for  the  annexation  of  terri- 
tory, and  it  is  not  necessary  to  the 
exercise  of  the  discretion  vested  in 
the  commissioners  that  an  ordinance 
should  previously  have  been  passed 
authorizing  the  designated  agents  to 
apply  for  such  amendment.  Shugars 
v.  Williams,  50  0.  S.  297. 

Discretion  of  commissioners. — 
The  decision  of  the  commissioners  is 
final  on  the  merits  of  the  case 
presented  to  them,  and  injunction 
is  allowed  only  for  errors  or  irreg- 
ularities in  the  proceedings.  Hul- 
bert  v.  Mason,  29  0.  S.  562. 

Posting  of  Notice. —  One  of  the 
provisions  relating  to  the  organiza- 
tion of  villages,  which  is  incorpor- 
ated by  reference  here,  is  that  relat- 
ing to  the  posting  of  notice  of  the 
application.  In  case  of  annexation 
of  territory,  such  notice  must  be 
posted  on  the  territory  proposed  to 
be  annexed.  Franklin  v.  Croll,  31  0. 
S.  647. 


28  THE    OHIO     MUNICIPAL    CODE.  [Code    §    6 

FORM  OF  NOTICE  OF  PETITION. 

LEGAL  NOTICE. 

Notice  is  hereby  given  that  on  the day  of 19  . . ,  there 

was  presented  to  the  Board  of  Commissioners  of  the  County  of , 

State  o*f  Ohio,  a  petition  signed  by  a  majority  of  the  adult  freeholders  re- 
siding   in    the    following   described    territory    situated   in    the    County    of 

and  adjacent  to  the  city  [or  village]  of ,  to-wit: 

(Here  copy  description  of  territory  contained  in  petition.) 
Praying  therein  that  said  territory  be  annexed  to  the  city  [or  village] 
oi ,  in  the  manner  provided  oy  law  and  designating  the  under- 
signed as  their  agent  in  securing  such  annexation. 

The  said  Board  of  Commissioners  has  fixed  the day  of , 

190..    (not  less  than  sixty  days  after  petition  is  filed),  as  the  time  for 

hearing  said  petition  at  the  office  of  the  Commissioners  in (here 

state  place  of  hearing). 


Agent  of  the  Petitioners. 


FORM  OF   ORDER  OF  COMMISSIONERS  FOR  ANNEXATION. 

The  Commissioners  of  the  County  of ." ,  State  of  Ohio,  pro- 
ceeding this  day  to  hear  the  petition  of and  others  to  obtain 

the  annexation  of  the  territory  in  their  petition  described  to  the  city  [or 

village]  of ,  and  having  in  open  meeting  heard  all  the  persons 

desiring  to  be  heard  for  or  against"  the  granting  of  said  petition  and  con- 
sidered the  affidavits  presented  with  reference  thereto,  and  being  fully  ad- 
vised find  that  said  petition  contains  all  the  matters  required  by  law,  that 
its  statements  are  true;  that  the  territory  sought  to«be  annexed  is  adjacent 

to  the  said  city  [or  village]  of ;  that  the  petition  contains  a 

full  description  of  said  territory;  that  the  map  of  said  territory  attached 
to  the  petition  is  accurate;  that  said  petition  is  signed  by  a  majority  of  the 
adult  freeholders  residing  on  the  territory  sought  to  be  annexed;  that  the 
required  legal  notice  of  the  petition  has  been  given,  and  that  it  is  right 
and  proper  that  said  petition  should  be  granted. 

It  is  hereby  ordered  that  the  prayer  of  said  petition  be  granted,  and  that 
the  territory  described  in  said  petition  may  be  annexed  to  the  city  [or  vil- 
lage] of in  accordance  with  law,  and  that  a  certified  transcript 

signed  by  a  majority  of  this  Board  of  all  the  orders  and  proceedings  of 
this  Board  relative  to  said  petition  and  hearing  thereon,  together  with 
said  petition  and  map  attached  thereto,  and  all  the  papers  on  file  relating 
to  said  matter  be  deposited  at  once  with  the  clerk  of  the  said  city  [or 
village]. 

Sec.  1591  R.  S.  [Duties  of  clerk  and  council.]  At  the  next 
regular  session  of  the  council  of  such  city  or  village,  after  the 
expiration  of  sixty  days  from  the  date  of  such  filing,  the  clerk 
shall  lay  the  transcript  and  the  accompanying  map  or  plat  and 
petition  before  the  council ;  and  thereupon  the  council  shall,  by 


Code    §    6]  ANNEXATION    OF    TERRITORY.  29 

resolution  or  ordinance,  accept  or  reject  the  application  for 
annexation.      [66  v.  265,  §  682.] 

FORM    OF    ORDINANCE    ACCEPTING    APPLICATION    FOR   ANNEX- 
ATION. 

Ordinance  No 

Accepting  application  for  annexation  of  territory. 

Be  it  ordained  by  the  council  of  the  city   [or  village]    of , 

State  of  Ohio: 

Sec.  1.  That  the  application  of and  others  for  the  an- 
nexation of  the  following  described  territory  in  the  County  of 

and  adjacent  to  the  city  [or  village]  of ,  to-wit: 

(Here  copy  description  of  territory  contained  in  the  petition.) 

An  accurate  map  of  which  territory,  together  with  the  petition  for  its 
annexation,  and  other  papers  relating  thereto,  and  a  certified  transcript 
of  the  proceedings  of  the  County  Commissioners  in  relation  thereto  are  on 
file  with  the  clerk  of  the  council  of  said  city  [or  the  clerk  of  said  village], 
be  and  the  same  is  hereby  accepted  [or  rejected]. 

Sec.  2.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed 10  ... 

President  of  Council, 

Attest 

Clerk. 

Sec.  1592   R.   S.  .  [Rejection   of    application   and   its   effect.] 

If  the  resolution  or  ordinance  is  to  reject  such  application,  no 
further  proceedings  shall  be  had;  but  such  rejection  shall  not 
be  a  bar  to  any  application  thereafter  to  the  county  commis- 
sioners on  the  same  subject.      [66  v.  265,  §  683.] 

Sec.  1593  R.  S.     [Proceedings  when  application  is  allowed.] 

If  the  resolution  or  ordinance  is  an  acceptance  of  such  appli- 
cation, the  clerk  of  the  city  or  village  shall  make  two  copies, 
containing  the  petition,  map  or  plat  accompanying  the  same, 
transcript  of  the  proceedings  of  the  commissioners,  and  resolu- 
tions and  ordinances  in  relation  to  the  annexation,  with  a  certifi- 
cate to  each  copy  that  the  same  is  correct,  which  certificate  shall 
be  signed  by  him  in  his  official  capacity,  and  be  authenticated 
by  the  seal  of  such  city  or  village,  if  any  there  be,  one  of  which 
copies  he  shall  forthwith  deliver  to  the  recorder  of  the  county, 
whose  duty  it  shall  be  to  make  a  record  thereof  in  the  proper 
book  of  records,  and  file  and  preserve  it,  and  the  other  copy 
shall  be  forwarded  by  the  clerk  to  the  secretary  of  state.  [66  v. 
265,  §  684.] 


30  THE    OHIO    MUNICIPAL    CODE.  [Code    §    6 

Sec.  1594  R.  S.     [Petition  to  enjoin  the  proceedings.]     If  the 

clerk,  within  sixty  days  from  the  filing  of  such  transcript,  map, 
or  plat  and  petition  in  his  office,  receive  notice  from  any  person 
interested  that  he  has  presented  to  the  court  of  common  pleas, 
or  a  judge  thereof,  a  petition  to  enjoin  further  proceedings,  the 
clerk  shall  not  report  to  the  council  such  transcript,  map,  or 
plat  and  petition  filed  with  him,  until  after  the  final  hearing 
and  disposition  of  the  petition  so  presented  to  such  court  or 
judge.1      [66  v.  265,  §  685.J 

(1)   Scope  of  injunction,  etc. —  must  be  presented  to  court  or  judge. 

See  notes  under  §  1562  R.  S.,  p.  19.  Ritter  v.  Falkinburg,  49  B.  277. 

How  petition  presented. —  Til-  For    form    of    petition   see    form 

ing  petition  with   clerk  of  court  is  under  §  1562  R.  S. 
not  compliance  with  statute,  but  it 


Sec.  1595  R.  S.     [Proceedings  when  petition  dismissed.]    If  the 

court  or  judge  make  an  order  dismissing  the  petition,  the  clerk 
of  the  court  shall  immediately  forward  a  certified  copy  of  it  to 
the  clerk  of  the  corporation,  who,  at  the  next  regular  meeting 
of  the  council,  shall  lay  before  the  council  such  transcript,  map, 
or  plat,  and  the  petition  accompanying  the  same,  as  if  no  such 
petition  had  been  so  presented  to  the  court  or  judge.  [66  v. 
265,  §  686.] 

Sec.  1596  R.  S.     [Proceedings  when  injunction  allowed.]     If 

the  court  or  judge  enjoin  the  clerk  from  making  such  report  to 
the  council  as  before  provided,  a  certified  copy  of  the  order  shall 
be  immediately  forwarded  by  the  clerk  of  the  court  to  the  clerk 
of  the  corporation,  who  shall  file  the  same  with  such  transcript, 
map  or  plat,  and  petition,  and  preserve  the  same  in  his  office, 
and  thereupon  no  further  proceedings  shall  be  had  in  the  mat- 
ter ;  but  such  order  of  the  court  or  judge  shall  not  operate  as  a 
bar  to  any  applications  thereafter  to  the  commissioners  of  the 
county  for  such  purpose.      [66  v.  266,  §  687.] 

Sec.  1597  R.  S.  [Rights  of  inhabitants  if  annexation  allowed.] 
When  the  resolution  or  ordinance,  accepting  such  annexation 
has  been  adopted,  the  territory  shall  be  deemed  a  part  of  the 
city  or  village,  and  the  inhabitants  residing  thereon  shall  have 
all  the  rights  and  privileges  of  the  inhabitants  within  the  origi- 
nal limits  of  such  city  or  village.     [66  v.  266,  §  688.] 


Code  §  6] 


ANNEXATION    OF    TERRITORY. 


31 


Sec,  1598  R.  S.  [Cases  where  corporation  is  situated  in  more 
than  one  county.]  Where  the  corporation  is  situated  in  two 
or  more  counties,  or  the  territory  so  to  be  annexed  is  situated 
in  a  different  county  from  that  in  which  the  corporation  or  some 
part  of  it  is  situated,  the  proceedings,  so  far  as  practicable,  shall 
be  as  directed  in  sections  fifteen  hundred  and  sixty-six,  and  fif- 
teen hundred  and  sixty-seven.1      [66  v.  266,  §  689.] 

(1)   For  forma  see  note  to  §  1562  R.  S.,  page  20. 

Subdivision  2.     Annexation  of  Territory  on  Application 
of  a  Corporation. 

Sec.  1599  R.  S.1  [General  provisions  as  to  right.]  When  the 
inhabitants  generally2  of  any  municipal  corporation  desire  to 
enlarge  its  corporate  limits  by  the  annexation  of  contiguous3 
territory,  it  shall  be  done  in  the  manner  hereinafter  specified,4 
provided,  however,  that  no  proceedings  shall  be  had  to  annex 
any  village,  hamlet5  or  territory  lying  contiguous  and  adjoining 
any  city  of  the  third  grade  of  the  first  class,6  unless  the  major- 
ity of  all  the  owners  of  real  estate  residing  in  such  village, 
hamlet  or  territory  sought  to  be  annexed  shall  petition  therefor, 
and  which  petition  shall  be  filed  with  the  clerk  of  such  city. 
[95  v.  113;  74  v.  36,  §  690.] 


(1)  This  section  was  enacted 
April  4,  1902,  as  an  amendment  of 
§  1599  R.  S.,  and  under  §  212  of 
the  code  is  to  be  regarded  as  ex- 
pressly re-enacted. 

(2)  Desire  of  inhabitants. — 
No  mode  being  provided  for  obtain- 
ing the  desire  of  the  inhabitants, 
generally,  the  act  of  the  council  ex- 
pressing it,  is  sufficient.  Croll  v. 
Franklin,  40  O.  S.  340. 

(3)  Contiguous  territory. — Ter- 
ritory separated  from  the  munici- 
pality by  a  navigable  stream  is  "  con- 
tiguous "  territory.  Blanchard  v. 
Bissell,  11  O.  S.  96. 

(4)  Constitutionality. —  Statute 
is  not  unconstitutional  because  it 
does  not  provide  for  submission  of 
question  of  annexation  to  a  popular 


vote.  State  v.  Cincinnati,  52  O.  S. 
419. 

What  territory  may  be  an- 
nexed.—  The  municipal  limit  may 
be  extended  over  an  unincorporated 
village.  Blanchard  v.  Bissell,  11  O. 
S.  96. 

Effect  of  annexation. — See  note 
3  under  §  1589  R.  S. 

( 5 )  See  note  "  Status  of  ham- 
lets," under  §   1  of  the  code. 

(6)  Grades  and  classes  under 
new  Code. —  It  appears  that  in 
several  instances,  the  Legislature,  in 
reenacting  old  sections  of  the  stat- 
utes: as  parts  of  the  new  Code,  re- 
tains the  objectionable  classification 
of  municipalities.  These  instances 
are  of  two  kinds ;  first,  where  the  old 
statute  confers  powers  upon  a  par- 


THE    OHIO     MUNICIPAL    CODE. 


(Code  §  6 


ticular  grade  and  class  of  cities 
only,  and  second,  where  a  particular 
grade  and  class  is  excepted  from 
the  provisions  of  a  general  law.  As 
to  the  first  of  these  cases  it  will  gen- 
erally be  found  that  the  particular 
statute  has  been  upheld  in  a  suit 
contesting  its  constitutionality  on 
the  ground  of  its  special  applica- 
tion, and,  the  municipality  which 
was  a  party  to  the  suit  having  acted 
upon  the  faith  of  the  stability  of 
the  former  judgment,  a  peculiar  lo- 
cal subject-matter  has  been  brought 
into  existence,  which  would  proba- 
bly insure  a  reaffirmation  of  the  va- 
lidity of  the  special  act  upon  the 
principles  announced  in  Taft  v. 
Cincinnati,  63  O.  S.  141. 

As  to  those  instances  in  the  new 
Code  where  in  the  reenactment  of 
old  sections,  particular  grades  and 
classes  oi  cities  are  retained  as  ex- 
ceptions to  the  general  operation  of 
the  law,  it  may  well  be  contended, 
in  view  of  the  expressed  purpose  ana 
intent  of  the  new  act,  that  such  ex- 
ceptions are  abrogated  and  nullified, 
and  the  reenacted  statute  made  to 
operate  uniformly  throughout  the 
state,  as  effectually  as  if  the  excep- 
tions had  never  existed,  or  had  been 
eliminated  by  amendment.  The  new 
Code  expressly  abolishes  the  old 
classification  by  dividing  all  munici- 
pal corporations  into  cities  and  vil- 
lages, thus  leaving  no  municipalities 
upon  which  such  exceptions  can  op- 
erate. It  provides  further  (see 
concluding  sentence  of  sec.  231) 
that  "  this  act  shall  supersede  all 
acts  and  parts  of  acts  not  herein  ex- 
pressly repealed,  which  are  incon- 
sistent herewith,"  and,  (in  sec.  229) 
that  in  the  event  that  any  section  or 
part  of  a  section  shall  be  held  to  be 
unconstitutional,  the  remainder 
shall  nevertheless  be  given  full  force 
<»nd    effect.     These  provisions    sug- 


gest the  legislative  intent  to  be  that 
where  parts  of  sections  retained  in 
the  Code  are  inconsistent  with  the 
new  classification  of  municipalities 
or  are  unconstitutional  in  continu- 
ing the  old  classification,  such  parts 
should  be  disregarded,  and  the  re- 
mainder of  the  section  should  be 
given  the  same  force  and  effect 
throughout  the  state  as  if  the  excep- 
tions had  been  omitted.  It  cannot 
be  said  that  the  legislature  would 
not  have  reenacted  the  old  sections 
herein  referred  to  without  the  ex- 
ceptions as  to  particular  grades  and 
classes  of  cities.  In  fact,  it  appears 
that  the  legislature  has  expressly 
declared  its  intent  to  be  that  such 
exceptions  are  superseded  and  re- 
pealed as  inconsistent  with  other 
provisions  of  the  Code.  As  to  the 
rule  that  an  unconstitutional  part 
or  clause  of  an  act  may  be  rejected 
and  effect  given  to  the  remainder 
where  it  appears  that  the  one  is  not 
dependent  upon  the  other,  see  State 
ex  rel.  v.  Brewster,  39  O.  S.  653, 
659;  Cincinnati  v.  Bryson,  15  O. 
625,  645;  Bowles  v.  State,  37  O.  S. 
35;  R.  R.  v.  Commrs.,  31  O.  S.  338, 
343 ;  State  v.  Baker,  55  O.  S.  1 ;  Pump- 
v.  Commissioners,  69  O.  S.  448.  That 
an  unconstitutional  act  may  become 
constitutional  by  amendment  is  de- 
termined in  State  ex  rel.  v.  Cincin- 
nati, 52  0.  S.  419,  and  it  may  also 
be  contended  that  the  same  result 
would  follow  the  repeal,  where 
clearly  intended,  of  an  unconstitu- 
tional proviso  or  exception  in  an 
otherwise  constitutional  statute.  St. 
Ry.  Co.  v.  St.  Ry.  Co.,  50  O.  S.  603. 
On  the  other  hand,  it  has  been 
held  that  where  an  act  of  the  Legis- 
lature required  to  have  uniform  oper- 
ation throughout  the  state,  express- 
ly excepts  from  its  operation  one  or 
more  cities,  the  whole  act  is  invalid, 
and  the  court  will  not  hold  the  ex- 
ception alone  invalid   and  thus  ex- 


Code    §    6]  ANNEXATION    OF    TERRITORY.  33 

tend  the  act  over  the  excepted  cities,  method  prescribed  by  the  constitu- 
tor the  Legislature  has  not  enacted  tion  for  amending  statutes,  even 
it  therein.  State  ex  rel.  v.  Buckley,  though  its  requirements  in  that  re- 
60  O.  S.  273.  Moreover  it  may  be  spect  are  directory  only.  Const, 
said  that  the  Legislature  should  not  Art.  II.,  sec.  16;  Lehman  v.  Mc- 
be    held    to    have    disregarded    the  Bride,  15  0.  S.  573. 

Sec.  1600  R.   S.     [Council  may  pass  preliminary  ordinance.] 

The  council  or  board  of  trustees  of  the  corporation,  by  a  vote 
of  not  less  than  a  majority  of  the  members  elected,  shall  pass 
an  ordinance  authorizing  such  annexation  to  be  made,  and  di- 
recting the  solicitor  of  the  corporation,  or  some  one  else  to  be 
named  in  the  ordinance,  to  prosecute  the  proceedings  necessary1 
to  effect  such  annexation.      [74  v.  36,  §  691.] 

( 1 )   Successive     applications. —  The  agent  appointed  continues 

The  ordinance  authorizes  successive  to   act  though   the   county  commis- 

applications  to  the  county  commis-  sioners  are  reversed  by  the  courts, 

sioners  until  the  agent  succeeds  or  until   final   decision   on   the  merits, 

there  is  a  final  decision  on  the  mer-  lb. 
its.    Croll  v.  Franklin,  40  O.  S.  340. 

FORM  OF  ORDINANCE  AUTHORIZING   ANNEXATION. 

Ordinance  No 

To  authorize  annexation  of  certain  territory  to  the  city   [or  village]   of 


Be  it  ordained  by  the  council  of  the  city   [or  village]   of , 

State  of  Ohio: 

Sec.  1.  That  the  annexation  of  the  following  described  territory:  (Here 
insert  description  of  territory  to  be  annexed),  to  the  city  [or  village]  of 
be  and  the  same  is  hereby  authorized. 

Sec.  2.  That  the  solicitor  [or  some  other  person  named]  be  and  he  is 
hereby  authorized  to  prosecute  the  proceedings  necessary  to  effect  such  an- 
nexation. 

Sec.  3.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed  this day   of ,   19    ... 


President  of  Council. 

Attest 

Clerk. 

Sec.  1601  R.  S.     [Petition  to  county  commissioners.]        The 

application  of  the  corporation  to  the  county  commissioners  for 
such  purpose  shall  be  by  petition,  setting  forth  that,  under  an 
ordinance  of  the  council  or  board  of  trustees,  the  territory 
therein  described  was  authorized  to  be  annexed  to  the  corpo- 


34  the  ohio  municipal  code.  [Code  §   6 

ration;  and  the  petition  shall  contain  an  accurate  description 
of  such  territory,  and  be  accompanied  by  an  accurate  map  or 
plat  thereof.1      [74  v.  36,  §  692.] 

(1)   Agent. —  Where  a  petition  is  thorized  to  act  as  agent  of  the  peti- 

presented   on  behalf   of   a   city   and  tioners.    Section  1589  does  not  apply 

consented     to     by    the     corporation  to   annexation    on   application    of   a 

counsel,  it  is  not  necessary  that  such  corporation.    Pollock  v.  Toland,  1  C. 

petition  contain  name  of  person  au-  C.   (N.  S.)   315;  25  C.  C.  75. 

FORM   OF   PETITION   BY    THE    CORPORATION   FOR  ANNEXATION 

OF  TERRITORY. 
To  the  Commissioners  of County,  State  of  Ohio : 

The  city   [or  village]   of respectfully  represents  that  by  an 

ordinance  duly  passed  by  its  council  on  the day  of ,  190. .,  the 

following  described  territory  (here  copy  description  of  territory  contained 
in  the  ordinance)  was  authorized  to  be  annexed  to  said  city  [or  village]. 

An  accurate  map  of  which  territory  is  hereto  attached. 

And  said  city  [or  village]  respectfully  petitions  that  said  territory  may 
be  annexed  to  said  city   [or  village]. 

City  [or  village]   of 

by 

City  [or  village]  Solicitor. 

Sec.  1602  R.  S.  [Proceedings  before  commissioners.]  When 
such  petition  is  presented  to  the  commissioners,  like  proceed- 
ings shall  be  had,  in  all  respects,  so  far  as  applicable,  as  are 
required  under  the  provisions  of  subdivision  one  of  this  chap- 
ter.1    [66  v.  266,  §  693.] 

(1)   Sections  referred  to. —  This      referred  to,  under  §  1590  R.  S.     See 
refers  to  §§  1589-1616  R.  S.  inclu-      generally,  notes  under  §  1590  R.  S. 
sive.     And  see  notes  giving  sections  Agent. —  See  note  to  §  1601  R.  S. 

supra. 

Sec.  1603  R.  S.  [Cases  where  corporation  in  more  than  one 
county.]  Where  the  corporation  is  situated  in  two  or  more 
counties,  or  the  territory  to  be  annexed  is  situated  in  a  different 
county  from  that  in  which  the  corporation  or  some  part  of  it  is 
situated,  the  proceedings  shall  be  in  the  county  in  which  the  ter- 
ritory to  be  annexed,  or  some  part  of  it,  is  situate.  [66  v.  267, 
§  694.] 

Sec.  1603a  R.  S.  [When  such  territory  lies  partly  in  another 
county  or  counties.]  Where  the  territory  sought  to  be  an- 
nexed is  partly  in  the  county  in  which  the  corporation  is  sit- 
uated and  partly  in  another  county,  or  counties,  the  proceedings 
shall  be  in  that  county  in  which  there  is  the  largest  number  of 
qualified  voters  residing  upon  the  territory  sought  to  be  an- 
nexed, and,  so  far  as  practicable,  such  proceedings  shall  be  as 
directed  in  sections  fifteen  hundred  and  sixty-six  and  fifteen 
hundred  and  sixty-seven.     [1888,  April  13 :  85  v.  224.] 


Code    §    6]  ANNEXATION    OF    TERRITORY  35 

Sec.  1604  R.  S.  [Rights  when  annexation  complete.]  When 
the  annexation  of  such  described  territory  has  been  completed, 
the  same  shall  be  deemed  a  part  of  such  municipal  corporation, 
and  the  inhabitants  residing  on  the  territory  shall  have  all  the 
rights  and  privileges  of  the  inhabitants  residing  within  the 
original  limits  of  the  corporation.1      [66  v.  267,  §  695.] 

(1)    Effect  of  annexation. —  See  Consent    of    inhabitants- — The 

note  3  under  §  1589  R.  S.  fact  that  the  inhabitants  of  the  an- 

Taxes  may  be  levied  on  the  an-  nexed  territory   did  not  consent  to 

nexed  territory  to  pay  pre-existing  the  annexation  and  that  it  was  done 

debts  of  the  municipality.    Powers  v.  against  their  remonstrance,  does  not 

Wood  Co.,  8  0.  S.  285.  invalidate  the  annexation.     Blanch- 

ard  v.  Bissell,  11  O.  S.  96. 


Sec.  1605  R.  S.  [When  errors  not  fatal  to  proceedings.]  No 
error,  irregularity,  or  defect  in  such  proceedings  shall  render  it 
invalid,  if  the  addition  has  been  recognized  as  a  part  of  the 
corporation,  and  taxes  levied  upon  it  as  such  have  been  paid, 
and  it  has  been  subjected  to  the  authority  of  the  council,  without 
objection  from  its  inhabitants.      [66  v.  267,  §  696.] 

Subdivision  3.     Annexation  of  One  Municipal  Corpora- 
tion to  Another. 

Sec.  1606  R.  S.  [Annexation  of  contiguous  territory  to  cor- 
porations.] When  the  inhabitants,  generally,  of  any  municipal 
corporation,  the  territory  of  which  shall  be  contiguous,  and  ad- 
joining the  territory  of  another  municipal  corporation,  desire 
to  be  annexed  to  such  other  corporation,  such  annexation  shall 
be  effected  in  the  manner  hereinafter  described.1  [66  v.  267, 
§  697.] 

(1)    See  notes  under  §  1599  R.  S.  supra. 

Sec.  1607  R.  S.  [Submission  of  question  to  vote.]  The  trust- 
ees or  council  of  the  corporation  proposing  such  annexation 
shall  submit  the  question  of  annexation  to  the  electors  of  the 
corporation,  and  the  trustees  or  council  of  the  corporation  to 
which  the  annexation  is  proposed  to  be  made,  shall  also  submit 
the  same  question  to  its  electors.      [QQ  v.  267,  §  698.] 

Sec.  1608  R.  S.  [Ordinance  for  purpose.]  The  submission 
shall  be  by  ordinances  adopted  by  the  trustees  or  council  of  each 


36  the  oino  municipal  code.  [Code  §   6 

corporation  at  least  thirty  days  prior  to  an  annual  election,  at 
which  election  the  vote  shall  be  taken,  and  the  ordinances  shall 
each  prescribe  the  manner  in  which  such  submission  shall  be 
made,  and  they  shall  be  published  in  each  corporation,  by  posters 
or  otherwise,  in  such  manner  as  the  respective  trustees  or  coun- 
cils may  deem  most  expedient,  for  the  period  of-at  least  twenty 
days  prior  to  the  day  fixed  for  such  election.  [1904,  April  25, 
97  v.  190;  66  v.  267,  §  699.] 

FORM  OF  ORDINANCE  SUBMITTING  TO  VOTE  THE  QUESTION  OF 

ANNEXATION    TO    ANOTHER    MUNICIPALITY. 

Ordinance  No 

To  submit  to  vote  the  question  of  annexation  of  the  city  [or  village]  of 
to  the  city  [or  village]  of 

Be  it  ordained  by  the  council  of  the  city  [or  village]  of : 

Sec.  1.     That  the  question  of  the  annexation  of  the  city  [or  village]   of 

to  this  city   [or  village]   of be  submitted  to  the 

qualified  voters  of  the  city  [or  village]  of at  the  annual  elec- 
tion in 19 

Sec.  2.     The  question  whether  such  annexation  shall  be  made  shall  be 

put  in  the  form  of  "  Shall  the  city  [or  village]  of be  annexed 

to  the  city   [or  village]    of ,"  "  Ye3,"   "  No,"  and  printed  on 

ballots,  and  those  who  are  in  favor  of  such  annexation  shall  place  a  cross 
mark  after  the  word  "  Yes,"  and  those  who  are  opposed  to  such  annexation 
shall  place  a  cross  mark  after  the  word  "  No." 

Sec.  3.  Ballot  boxes  shall  be  provided  and  votes  counted  and  returned 
and  the  election  conducted  as  regular  municipal  elections. 

Sec.  4.  The  clerk  of  council  [or  village  clerk]  is  hereby  directed  to 
publish  this  ordinance  in  a  newspaper  of  general  circulation  in  this  cor- 
poration at  least  twenty  days  prior  to  the  date  of  the  election  hereby  au- 
thorized. 

Sec.  5.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed  this day  of ,    19 


President  of  Council. 

Attest 

Clerk. 

Sec.  1609  R.  S.     [Result,  if  favorable,  to  be  certified.]     If  a 

majority  of  the  electors  of  each  corporation,  voting  on  the  ques- 
tion so  submitted,  is  in  favor  of  such  annexation,  the  trustees 
or  council  of  each  shall  thereupon  cause  the  result  to  be  certified 
to  the  other  corporation.     [66  v.  268,  §  700.] 

Sec.  1610  R.    S.     [Council,    etc.,   to   appoint   commissioners.] 
The  trustees  or  council  of  each  corporation  shall  then  appoint, 


Code    §    6]  ANNEXATION    OF    TERRITORY.  37 

by  resolution  or  ordinance,  three  commissioners,  whose  duty  it 
shall  be  to  arrange  the  terms,  and  conditions  of  such  annexation, 
and  report  the  result  of  their  action  to  the  trustees  or  council  of 
their  respective  corporations.      [66  v.  268,  §  701.] 

FORM  OF  RESOLUTION  APPOINTING  COMMISSIONERS. 

Be  it  resolved  by  the  council  of  the  city   [or  village]    of , 

that , f  and !be  and  they  are  hereby  appoint- 
ed commissioners  to  represent  the  city  [or  village]  of in  arrang- 
ing with  like  commissioners  from  the  city   [or  village]   of the 

terms  and  conditions  on  which  said  city  [or  village]  of is  to  be 

annexed  to  the  said  city  [or  village]  of 

And  that  said  commissioners  shall  report  the  result  of  their  action  to  the 
council  of  this  corporation. 

Adopted  this day  of ,  190 . . . 

Sec.  1611  R.  S.  [Report  of  commissioners.]  When  the  report 
of  such  commissioners  shall  be  approved  by  an  ordinance  passed 
by  each  corporation,  certified  copies  thereof,  signed  by  the  pre- 
siding officer  of  the  trustees  or  council  of  each  corporation,  and 
the  respective  clerks  of  the  corporations,  and  authenticated  by 
the  corporate  seal  of  each,  if  any  there  be,  shall  be  filed  in  the 
office  of  the  clerk  of  the  corporation  to  which  such  annexation  is 
proposed  to  be  made.      [66  v.  268,  §  702.] 

FORM  OF  ORDINANCE  APPROVING  REPORT  OF  COMMISSIONERS. 
Ordinance  No 

To  approve  report  of  Commissioners  on  annexation  of  city  [or  village] 
of to  the  city  [or  village]  of 

Whereas,  The  council  of  the  city    [or  village]    of on  the 

day  of ,  19'  . .,  duly  passed  an  ordinance  submitting  to 

popular  vote  the  question  of  the  annexation  of  the  city   [or  village]   of 

to  said  city  [or  village]  and  the  city  [or  village]  of 

on   the day   of passed   a   like   ordinance   submitting   the 

same  question  to  the  qualified  voters  of  that  said  city  [or  village] ; 

And  Whereas,  A  vote  was  taken  in  each  of  the  said  corporations  under 
the  provisions  of  the  respective  ordinances,  and  a  majority  of  the  qualified 
voters  in  each  corporation  voted  in  favor  of  annexation  on  tjie  question  thus 
submitted ; 

And  Whereas,  Thereupon  the  council  of  the  city  [or  village]  of 
appointed ,  ,  and  commis- 
sioners to  act  for  said  city    [or  village]   and  the  council  of  the  city   [or 

village]   of appointed ,    ,  and    

commissioners  to  act  for  that  said  city  [or  village]  for  the  purpose  of 
arranging  the  terms  and  conditions  of  such  annexation,  and  said  commis- 
sioners reported  the  terms  of  annexation  as  agreed  to  by  them  as  follows: 
(Here  insert  the  report  of  commissioners  in  full)  ; 


38  THE    OHIO     MUNICIPAL    CODE.  [Code    §    6 

Now  therefore,  be  it  ordained  by  the  council  of  the  city  [or  village]  of 
,   State  of  Ohio : 

Sec.  1.  That  the  report  of  the  said  commissioners  above  set  forth  be  and 
the  same  is  hereby  approved. 

Sec.  2.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed  this day  of ,19    ... 

President  of  Council. 

Attest 

Clerk. 

Sec.  1612  R.  S.     [Clerk  of  corporation  to  make  transcripts.] 

The  clerk  shall,  under  the  direction  of  the  corporation,  make 
and  certify  two  transcripts  of  all  the  ordinances,  abstracts  of 
the  returns  of  the  votes,  and  other  papers  relating  to  such  an- 
nexation, one  of  which  shall  be  filed  in  the  office  of  the  recorder 
of  the  county,  who,  having  made  a  record  thereof,  shall  file  and 
preserve  it,  and  the  other  shall  be  forwarded  by  such  clerk  to 
the  secretary  of  state.      [66  v.  268,  §  703.] 

Sec.  1613  R.  S.  [When  annexation  to  be  deemed  complete; 
power  of  corporation  thereafter.]  When  the  transcripts  are  cer- 
tified, and  one  of  them  is  delivered  to  the  recorder  and  the 
other  forwarded  to  the  secretary  of  state,  as  aforesaid,  the  an- 
nexation shall  be  deemed  complete;  and  the  corporation  to 
which  the  annexation  is  made  may  pass  such  ordinances  as  will 
carry  into  effect  the  terms  thereof,  so  far  as  the  same  are  not 
inconsistent  with  this  title,  and  with  the  regular  and  proper 
government  of  the  corporation  under  its  provisions;  and  any 
part  of  such  terms  so  inconsistent  shall  be  deemed  void,  but 
their  nullity  shall  in  no  manner  affect  such  annexation.  [66  v. 
268,  §  704.] 

Sec.  1614  R.  S.  [Corporations  to  be  governed  as  one;  not  to 
affect  rights  or  liabilities.]  When  the  annexation  is  completed, 
the  two  former  corporations  shall  be  governed  as  one,  embracing 
the  territory  of  each ;  and  the  inhabitants  of  all  such  territory 
shall  have  equal  rights  and  privileges ;  but  such  annexation  shall 
not  affect  any  rights  or  liabilities  existing  at  the  time  of  the 
annexation,  either  in  favor  of  or  against  the  corporations ;  and 
suits  founded  on  such  rights  and  liabilities  may  be  commenced, 
and  pending  suits  prosecuted  to  final  judgment  and  execution, 
as  though  such  annexation  had  not  taken  place.1  ^66  v.  268, 
I  705.] 


Code    §    6]  ANNEXATION"    OF    TERRITORY.  39 

(1)  Territory  annexed  pending  But  such  tax  must  not  with  tho 
merger  of  municipalities. —  If  other  taxes  levied  on  said  territory 
while  proceedings  to  annex  territory  exceed  the  statutory  limit.  lb. 
to  a  village  are  pending,  the  village  Agreement  as  to  grades. —  An 
is  annexed  to  a  city,  "the  people  of  agreement  in  the  terms  of  annexa- 
such  territory  become  a  part  of  the  tion  stipulating  that  street  grades 
city,  although  they  did  not  partici-  should  not  be  altered  except  by  con- 
pate  in  the  vote  on  the  question  of  sent  of  property  owners  or  the  pay- 
annexation  of  the  village  to  the  ment  of  damages  is  void  so  far  as  it 
city;  and  they  have  no  remedy  is  a  contract  not  to  legislate  and 
against  becoming  part  of  the  city.  has  the  effect  merely  of  putting 
Mohn  v.  Collins,  32  B.   77.  the  grades  on  the  same  basis  as  city 

Taxes  on  annexed  municipality  grades  and  gives  abutting  property 

alone- — A  tax  which  by  agreement  owners  no  greater  rights.     Thale  v. 

between  a  city  and  a  village  annexed  Cincinnati,    1   N.  P.  427 ;    Corry  v. 

to  it  was  levied  on  the  village  prop-  Cincinnati,  22  B.,  194. 

erty  alone  to  pay  the  bonds  of  the  Rights     after     annexation. —  A 

village,  is  not  void  for  want  of  uni-  city  which  has  annexed  a  village  has 

formity.    Cleveland  v.  Heisley,  41  0.  no  greater  rights  with  respect  to  a 

S.  670.  street  railway  within  the  limits  of 

The  existence   of  the  village  an-  the  village  than  the  village  had.  Cin- 

nexed  is  continued  only  so  far  as  to  cinnati  v.  Street  Railway,  17  B.  192. 
legalize  the  tax  for  its  debt.    lb. 

Sec.  1615  R.  S.  [How  part  of  village  attached  to  a  city; 
existing  indebtedness.]  When  a  city  and  village  adjoin  each 
other,  and  the  inhabitants  of  any  portion  of  the  territory  con- 
stituting a  part  of  such  village  desire  to  be  detached  therefrom, 
and  annexed  to  such  city,  the  commissioners  of  the  proper 
county,  on  the  application  of  the  council  of  the  city,  and  on  the 
written  request  of  two-thirds  of  the  legal  voters  inhabiting  the 
territory  proposed  to  be  so  annexed,  may  cause  such  alteration 
to  be  made,  and  the  boundaries  of  such  city,  and  such  village, 
respectively,  to  be  established  in  accordance  with  such  applica- 
tion and  request,  and  such  territory  shall  thereafter  constitute 
a  part  of  such  city ;  provided,  that  in  all  their  proceedings  in 
the  premises,  the  county  commissioners  shall,  as  far  as  the  same 
are  applicable,  be  governed  by  the  provisions  of  this  division, 
prescribing  the  manner  of  proceeding  on  applications  for  the 
annexation  of  adjacent  unincorporated  territory  to  villages  and 
cities  ;*  and  provided  further,  that  the  commissioners  shall  ascer- 
tain and  apportion  the  amount  of  the  existing  indebtedness  of 
the  village,  which  shall  be  assumed  and  paid  by  the  city  on  the 
annexation  of  the  territory  aforesaid.  And  said  apportionment 
shall  be  made  in  the  proportion  of  the  total  tax  duplicate  for  the 
annexed  territory  transferred  to  the  city,  to  the  total  tax  dupli- 
cate remaining  in  and  for  the  unannexed  portion  of  the  village, 


40  THE    OHIO    MUNICIPAL    CODE.  [Code    §    6 

and  to  ascertain,  adjust,  and  divide  between  the  city  and  the 
unannexed  portion  of  said  village,  all  moneys  and  other  credits 
belonging  to  the  village  in  the  same  proportion  as  is  above  pro- 
vided for  division  and  apportionment  of  any  indebtedness,  and 
to  order  the  amounts  so  adjusted  and  divided- to  be  paid  or  de- 
livered by  the  parties  in  possession  thereof  to  the  city  and  unan- 
nexed  portion  of  said  village.2      [88  v.  39 ;  68  v.  85,  §  1.] 

(1)    What    provisions    applica-  corporate   action,    accepted   the   an- 

ble. —  The  provisions  of  §§   1589  to  nexation.     lb.     See    further,    as    to 

1605,  referred  to,  govern,  not  alone  what  specific  provisions  are  applica- 

the  actions  and  duty  of  the  county  ble.     Pollock  v.  Toland,  1  C.  C.  (N. 

commissioners  under  §  1615,  but  the  S.)  315;  25  C.  C.  75. 

entire  procedure,  including  action  of  ( 2 )    Forms. —  See  forms  under  § 

municipal  authorities.   Rost  v.  Glen-  1589,    §    1590,    and    §    1591.     These 

ville,  1  N.  P.  (N.  S.)  65.   So  the  an-  forms  may  be   adapted  to   suit   the 

nexation   is   not   complete  until  the  circumstances   of  the   case  provided 

indebtedness    has    been    apportioned  for  in  this  section, 

and  the  municipality  has,  by  proper  See  notes  to  §  1614  above. 

Subdivision  4.  Detachment  of  Territory  from  Munic- 
ipal Corporations. 
Sec.  1616  R.  S.1  [How  territory  detached  from  municipal  cor- 
poration and  attached  to  township.]  Upon  petition  of  a  ma- 
jority of  the  freehold  electors  owning  lands  in  any  portion  of 
the  territory  of  a  city,  village  or  hamlet2  accurately  described 
in  such  petition,  with  an  accurate  map  or  plat  thereof,  praying 
to  have  the  said  portion  of  territory  detached  from  said  city, 
village  or  hamlet,  the  commissioners  of  the  county  in  which  such 
portion  of  territory  is  situated,  shall,  with  the  assent  of  the 
council  of  the  city  or  village  or  trustees  of  the  hamlet,  given  in 
an  ordinance  passed  for  that  purpose,  and  not  otherwise,  detach 
such  portion  of  the  territory  from  such  city,  village  or  hamlet 
an'A  attach  the  same  to  any  township  contiguous  thereto,  or,  if 
the  petition  so  request,  shall  erect  the  same  into  a  new  township, 
the  boundaries  of  which  need  not  include  twenty-two  square 
miles  of  territory;  and  the  petition,  map,  ordinance,  and  the 
order  of  the  commissioners,  certified  by  the  county  auditor,  shall 
be  recorded  in  the  plat  book  in  the  office  of  the  county  recorder, 
and  as  soon  as  the  record  is  made,  the  proceeding  shall  be  deemed 
complete,  both  as  to  the  detaching  of  such  territory  from  the 
municipal  corporation  and  the  annexation  thereof  to  the  town- 
ship, or  the  erection  of  such  territory  into  the  new  township.3 
[1904,  April  21,  97  v.  143;  95  v.  120;  74  v.  109.] 

(1)  This  section  was  enacted  (2)  See  note  "Status  of  Ham- 
April  10,  1902,  (95  v.  120) ,  to  amend  lets  "  under  §  1  of  the  code. 
§  1616  H.  S.  and  under  §  212  of  the  (3)  Forms.— The  forms  given 
code  is  to  be  regarded  as  expressly  under  §§  1589,  1590,  and  1591,  may 
re-enacted.  The  section  was  again  be  adapted  to  suit  the  circumstances 
amended  April  21,  1904.  provided  for  in  this  section. 


Code    §    6]  DETACHMENT    OF    TERRITORY.  41 

"All  act  to  provide  for  detaching  unplatted  farm  lands  from 
cities  and  incorporated  villages,  and  for  attaching  the  same  to 

adjacent  townships." 

[Sec.  1.]  [Petition  for  detachment  of  unplatted  farm  lands.] 
The  owner  or  owners  of  unplatted  farm  lands  lying  within  the 
corporate  limits  of  any  city  or  village  may  file  a  petition  in  the 
court  of  common  pleas  of  the  county  in  which  such  lands  are 
situate,  in  which  such  owner  or  owners  shall  be  named  as 
plaintiffs,  and  such  city  or  village  shall  be  the  defendant,  set- 
ting forth  the  reasons  why  such  lands  should  be  detached,  and 
the  relief  prayed  for.  On  such  petition  a  summons  shall  issue 
as  in  other  actions,  and  such  cause  proceed  as  in  other  causes. 
[April  23,  1902,  95  v.  259.] 

FORM   OF   PETITION   FOR  DETACHMENT   OF    UNPLATTED   FARM 
LANDS  FROM  A  MUNICIPAL  CORPORATION. 
Court  of  Common  Pleas, County,  Ohio. 


Plaintiff. 

vs. 
The  City  [or  village]  of 


PETITION. 


Defendant. 

Plaintiff  says  that  he  is  the  owner  of  the  following  described  property, 
to-wit:      (Here  insert  description  of  farm  lands  sought  to  be  detached.) 

Plaintiff  further  says  that  the  said  property  above  described  is  unplatted 
farm  land  and  lies  within  the  corporate  limits  of  the  city  [or  village] 
of 

Plaintiff  further  says  that  the  said  land  should  be  detached  from  the  said 
city  [or  village]  for  the  reason  that  (here  set  forth  the  reasons  why  the 
land  should  be  detached). 

Wherefore,  plaintiff  prays  that  the  said  property  may  be  detached  from 

the  city  [or  village]  of and  be  attached  to  the  adjacent  town- 

ghip  of in  said  county  of and  for  all  other  relief 

to  which  he  may  be  entitled. 


Attorney   for    Plaintiff. 


[Sec.  2.]  [Decree  of  court.]  On  the  hearing  of  such  cause 
if  the  court  shall  find  that  said  lands  are  farm  lands  and  that 
the  same  may  be  detached  without  materially  affecting  the  good 
government  of  adjacent  territory  within  such  city  or  village 
limits,  an  order  and  decree  may  be  made  by  the  court  in  his 
discretion  and  entered  on  the  record  that  such  lands  be  detached 
from  such  city  or  village  and  be  attached  to  the  most  convenient 


42  THE    OHIO    MUNICIPAL    CODE.  [Code  §  6 

adjacent  township  in  the  same  county,  and  thereafter  such  land 
shall  not  be  a  part  of  said  city  or  village,  and  shall  be  a  part  of 
the  township  to  which  the  same  has  been  so  attached,  and  the 
costs  taxed  as  to  the  court  may  seem  right.1  [April  23,  1902, 
95  v.  250.] 

(1)  Validity.    This  act  held  con-  Hill  v.  McClure,  27   C.   C.   376;    6 

stitutional.     It  does  not  confer  leg-  C.  C.    (N.   8.)    197    (aff'd  72  0.  S. 

islative  power  on  the  court.     Fair-  676.) 
view  v.  Giffee,  73  O.  S.  183;  Grover 


FORM  OF  DECREE  FOR  DETACHMENT. 
Court  of  Common  Pleas, County,  Ohio. 


Plaintiff, 
vs. 
The  City  lor  village  1  of 


DECREE. 


Defendant. 


This  cause  coming  on  to  be  heard  upon  the  pleadings  and  evidence  and 
the  Court  being  fully  advised  finds  that  the  lands  in  the  petition  described 
are  farm  lands  unplatted  and  within  the  corporate  limits  of  the  city   [or 

village]  of ;  that  the  said  lands  may  be  detached  from  the  said 

city  [or  village]  without  materially  affecting  the  good  government  of 
adjacent  territory  within  said  city  [or  village]  limits. 

Wherefore,  it  is  ordered,  adjudged  and  decreed  that  said  lands  be  de- 
tached from  the  said  city  [or  village]  of and  be  attached  to  the 

adjacent  township  of in  the  said  county  of 


Code  §  7] 


43 


II 


POWERS  OF  MUNICIPALITIES. 


1.     GENEKAL  POWEKS. 

Sec.  7.  [General  powers  of  municipalities.]1  Every  city  and 
village  shall  be  a  body  politic  and  corporate,2  which  shall 
have  perpetual  succession,  may  use  a  common  seal,3  sue  and  be 
sued,4  and  acquire  property  by  purchase,  gift,  devise,  or 
appropriation  for  any  municipal  purpose  herein  authorized,5 
and  hold,  manage  and  control  the  same  and  make  any  and  all 
rules  and  regulations,  by  ordinance  or  resolution,  that  may  be 
required  to  carry  out  fully  all  the  provisions  of  any  conveyance, 
deed  or  will,  in  relation  to  any  gift  or  bequest.  All  municipal 
corporations  shall  have  the  following  general  powers  6  and  coun- 
cil may  provide  by  ordinance  or  resolution  for  the  exercise 
and  enforcement  of  the  same  :7 


(1)  Old  sections.— See  old  Sec- 
tions 1552  R.  S.  and  1692  R.  S.  re- 
pealed; 95  v.  16,  78,  274,  526,  561, 
all  repealed  by  the  Code. 

(2)  Corporation  within  feder- 
al statutes. —  A  civil  township 
made  a  body  politic  and  corporate 
by  state  statute  is  a  corporation 
within  the  meaning  of  the  federal 
judiciary  act  of  1888.  Loeb  v.  Co- 
lumbia Township,  12  O.  F.  D.  349. 

(3)  Corporate  Seal.— §  1745 
R.  Sv  not  expressly  re-enacted,  but 
still  in  force,  because  not  repealed 
and  not  inconsistent  with  other  pro- 
visions of  the  Code/  provides  for 
form  of  seal,  and  makes  the  Mayor 
custodian  of  the  seal  of  the  corpora- 
tion. See  Tiffin  v,  Shawhan,  43  O. 
S.  178,  186. 


(4)  Actions. —  How  conducted. — 
Old  section  1552  R.  S.  was  held  to 
confer  the  power  to  sue  upon  council, 
and  it  was  not  necessary  that  every 
action  should  be  brought  by  the  so- 
licitor of  the  corporation.  Deatrick 
v.  Defiance,  1  C.  C.  340.  Where  mu- 
nicipality attempts  to  confess  judg- 
ment under  section  5321  R.  S.,  it  is 
necessary  that  the  municipality's  le- 
gal representative  appear  in  open 
court  and  confess  judgment  on  be- 
half of  the  municipality.  The  word 
"  person  "  in  section  5321  applies  to 
municipal  corporations.  Walcutt  v. 
Columbus,  13  Dec.  561;  1  N.  P.  (N. 
S.)  225.  The  word  "persons"  in 
section  5601  R.  S.,  includes  munici- 
pal corporations.  Springfield  v. 
Walker,  42  O.  S.  543. 


44 


THE    OHIO    MUNICIPAL     CODE. 


[Code  §  7 


Where  brought. — Where  city  is 
situated  partly  in  two  counties,  ac- 
tion must  be  brought  where  its 
offices  and  government  are  conduct- 
ed    Fostoria  v.  Fox,  60  O.  S.  340. 

Claim  due  village  changed  to 
city. — The  city  suing  for  a  claim 
formerly  due  a  village  from  which 
the  city  has  been  advanced  will  not 
be  required,  on  motion,  to  set  out 
the  manner  by  which  it  was  ad- 
vanced from  the  village  to  the  city. 
Deatrick  v.  Defiance,  1  C.  C.  340. 

No  action  on  quantum  meruit 
against  municipality. — To  state  a 
good  cause  of  action  against  a  mu- 
nicipality in  matters  ex  contractu 
the  petition  must  declare  upon  a 
contract,  agreement,  obligation  or 
appropriation  made  and  entered 
into  according  to  statute.  A  peti- 
tion on  account  merely  or  quantum 
meruit  in  such  case  is  not  sufficient. 
Wellston  v.  Morgan,  65  O.  S.  219. 

See  further  as  to  municipal  li- 
ability on  contracts,  notes  under 
§  143,  p.  372. 

(5)  Scope  of  power  to  pur- 
chase, hold  and  sell. — Matters  re- 
lating to  scope  of  power  of  munici- 
pality to  purchase,  hold  and  sell 
real  estate,  see  note  2  under  Code, 
par.  26,  p.  62. 

(6)  Municipal  powers  strictly 
limited. — A  municipal  corporation 
has  those  powers  only  which  are  ex- 
pressly granted  to  it,  and  such 
others  as  are  necessary  to  carry  out 
powers  expressly  granted.  Collins 
v.  Hatch,  18  Ohio  523;  Ravenna  v. 
Pennsylvania  Co.,  45  O.  S.  118; 
Bancroft  v.  Wall,  29  B.  306;  Gas  & 
Water  Co.  v.  Elyria,  57  O.  S.  374; 
Cincinnati  v.  Gass,  13  Dec.  703;  1 
N.  P.  (N.  S.)  169;  State  v.  Carter, 
67  O.  S.  422,  433 ;  L.  S.  &  M.  S.  By. 
Co.  v.  Elyria,  69  O.  S.  414. 

Power  to  make  contracts  advan- 


tageous to  the  municipality,  same  as 
that  of  an  individual,  see  Columbus 
v.  Ry.  Co.,  2  C.  C.  (N.  S.)  305,  25 
C.  C.  663. 

Estoppel. — Persons  dealing  with 
municipality  must,  at  their  peril, 
take  notice  of  the  limitations  upon 
its  powers  imposed  by  statute.  Lan- 
caster v.  Miller,  58  O.  S.  558,  575; 
Hulbert  v.  Fitzsimmons,  57  O.  S. 
436,  439. 

Where  municipality  has  power  to 
act  it  may  be  estopped  by  acts  or  ac- 
quiescence, but  where  there  is  a  to- 
tal absence  of  power,  there  is  no  es- 
toppel. Horstman  v.  Street  Ry.  Co., 
12  Dec.  756;  Cleveland  v.  State 
Bank,  16  O.  S.  236,  269.  See  fur- 
ther note  (2)  under  §  143,  p.  372. 

Power  to  pay  equitable  claims. 
— Where  claim  is  not  collect- 
ible at  law,  but  is  just  and  equi- 
table, and  council  has  ordered  its 
payment  by  ordinance,  such .  ordi- 
nance is  valid  and  equity  will  en- 
force the  claim.  State  ex  rel  v. 
Brown,  8  C.  C.  103;  State  ex  rel  v. 
Wall,  2  N.  P.  (N.  S.)  517;  15  Dec. 
349.  Compare  State  ex  rel  v.  Fron- 
izer,  15  Dec.  349;  3  N.  P.  (N.  S.) 
303. 

Curative  acts. — Validity  of  acts 
declaring  that  things  done  and  cre- 
ated under  unconstitutional  laws 
shall  nevertheless  continue  to  be  and 
remain  and  be  recognized  and  re- 
garded as  legal.  See  Bartlett  v. 
State,  73  O.  S.  54. 

(7)  Provide  for  enforcement 
of  powers. — This  clause  was  held 
to  permit  a  village  to  provide  that 
sewer  assessments  should  be  paid  to 
the  clerk,  and  that  he  should  pay 
them  into  the  debt  fund.  State  v. 
Carter,  67  O.  S.  432,  434. 

For  matters  relating  generally  to 
the  character  of  ordinances,  see  note 
2  under  §  122  of  the  code,  page  312. 


(a)    Enumeration    of    General    Powers. 
1.     [Riots,  gambling,  etc.]     To  prevent  riot,  gambling,  noise 
and  disturbance,  indecent  and  disorderly  conduct  or  assem- 
blages, and  to  preserve  the  peace  and  good  order,  and  protect 
the  property  of  the  corporation  and  its  inhabitants.1 

Bliss  v. 


(1)  Constitutionality.  —  The 
right  to  confer  police  power  on  a 
city  is  implied  in  the  constitutional 


power   to   create   a    city. 
Kraus,  16  O.  S.  54. 

Scope  of  power. — Police  power 
may  be  exercised  by  a  city,  but  the 


Code  §  7] 


GENERAL    POWERS. 


45 


authority  to  enact  any  particular 
ordinance  must  be  given  expressly 
or  by  necessary  implication.  Ra- 
venna v.  Pennsylvania  Co.,  45  O.  S. 
118.  Where  the  grant  is  uncertain 
the  power  must  be  denied.  Wells- 
ville  v.  O'Connor,  1  C.  C.  (N.  S.) 
253;  24  C.  C.  689,  690. 

The  exercise  of  the  police  power 
must  be  reasonable.  Exacting  a  li- 
cense fee  of  $50  a  day  for  transient 
dealers  is  unreasonable.  Glaser  v. 
Cincinnati,  31  B.  243.  A  city  may 
prohibit  disturbance  of  peace  by 
singing,  speech  making,  etc.,  in  the 
street  and  it  is  no  defense  that  such 
acts  are  done  in  conducting  religious 
exercises.  Trimble  v.  Bucyrus,  9 
D.  832.  Such  a  section  as  this 
would  give  power  to  prohibit  the 
publication  of  obscene  matter. 
O'Brien  v.  Cleveland,  1  Clev.  100,  4 
Dec.  (Re)   189. 

Under  a  section  of  former  statutes 
similar  to  this,  it  was  held  that  a 
municipal  corporation  has  no  power 
to  prohibit  the  blowing  of  steam 
whistles  within  the  corporation. 
Whitcomb  v.  Springfield,  3  C.  C» 
244;  nor  to  compel  a  railroad  to 
maintain  watchman  at  crossing. 
Ravenna  v.  Pennsylvania  Co.,  45  O. 


S.  118;  nor  to  make  penal  the  run- 
ning of  horse  cars  without  a  driver 
or  conductor.  Thornhill  v.  Cincin- 
nati, 4  C.  C.  354. 

A  section  such  as  this  would  not 
give  power  to  exact  a  license  from 
ticket  brokers.  Frank  v.  Cincinnati, 
7  N.  P.  146. 

Power  to  punish,  see  §  2108 
R.  S.,  p.  64.  The  general  power  to 
"  preserve  the  peace  and  good  or- 
der "  is  limited  by  the  provisions  of 
§  2108  R.  S.  and  the  manner  of  the 
exercise  of  the  power  is  governed  by 
that  section.  Wellsville  v.  O'Con- 
nor, 1  C.  C.  (N.  S.)  253;  24  C.  C. 
689.  But  see  Esch  v.  Elyria,  27  C. 
C.  446;  7  C.  C.   (N.  S.)   9. 

Municipal  liability. —  Though  a 
section  such  as  this  gives  the  power 
to  prevent  disturbance  of  the  public 
peace  and  protect  property,  a  mu- 
nicipality will  not  be  liable  for  fail- 
ure to  exercise  this  power.  Western 
College  v.  Cleveland,  12  O.  S.  375; 
•  Frederick  v.  Columbus,  58  O.  S.  538 ; 
Green  v.  Muskingum  County,  3  C.  C. 
(N.  S.)  212;  23  C.  C.  43. 

Thus  the  failure  to  prevent  a  riot 
would  not  render  the  city  liable  for 
property    destroyed.     Western    Col- 
lege v.  Cleveland,  12  O.  S.  375.     Rob- 
'  inson  v.  Greenville,  42  O.  S.  625. 


t.  [Billiards,  tenpins,  etc.]  To  regulate  billiard  and  pool 
tables,  nine  or  tenpin  alleys  or  tables,  and  shooting  and  ball 
alleys ; *  and  to  authorize  the  destruction  of  instruments  or 
devices  used  for  the  purpose  of  gambling.2 


(1)  Scope  of  power. —  A  keeper 
of  a  billiard  table  resort  may  be 
punished  for  keeping  open  on  Sun- 
day unless  he  observes  the  seventh 
day  of  the  week  instead  of  Sunday. 
Billigheimer  v.  State,  32  O.  S.  435. 

A  statute  forbidding  the  keeper  of 
a  public  house  or  retailer  of  liquor 
to  keep  a  bowling  alley  would  be 
unconstitutional.  State  v.  Thomp- 
Bon,  7  N.  P.  630. 


Effect  of  prohibition. —  Where 
a  nine-pin  alley  is  forbidden  a 
builder  cannot  recover  for  services 
in  constructing.  Spurgeon  v.  McEl- 
wain,  6  O.  442. 

(2)  Gambling  devices. —  Ordi- 
nary slot  machines  are  devices  used 
for  gambling.  Fletcher  v.  State.  18 
C.  C.  674;  but  when  not,  see  Heel- 
man  v.  State,  6  N.  P.  258. 


46 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  7 


3.  [Nuisance.]  To  prevent  injury  or  annoyance  from  any- 
thing dangerous,  offensive,  or  unwholesome:1  to  cause  any 
nuisance  to  be  abated;2  and  to  regulate  and  compel  the 
consumption  of  smoke,3  and  to  prevent  injury  and  annoyance 
from  the  same,  and  to  regulate  and  prohibit  the  use  of  steam 
whistles.4 


(1)  Scope  of  power. — Under  a 
section  such  as  this  a  village  may 
prohibit  the  storage  of  dynamite  or 
other  explosives  in  certain  quanti- 
ties within  the  corporate  limits. 
Hays  v.  St.  Mary,  55  O.  S.  198. 

Any  municipality  may,  by  ordi- 
nance, prohibit  absolutely  the  trans- 
portation of  nitro-glycerine  through 
the  streets,  and  such  ordinance  is 
not  inconsistent  with  Section  6953 
R.  S.  Walter  v.  Bowling  Green,  26 
C.  C.  756;  5  C.  C.  (N.  S.)  516.  A 
fine  of  $100.00  for  violation  is  not 
excessive,     lb. 

An  ordinance  forbidding  the 
transportation  of  any  dead  ani- 
mals, fish  or  garbage,  including  con- 
demned food,  through  the  streets, 
by  any  person  except  the  city  con- 
tractor or  his  agents,  was  held  void 
as  violating  the  fourteenth  amend- 
ment to  the  U.  S.  .Constitution. 
Bauer  v.  Casey,  26  C.  C.  598;  6 
C.  C.    (N.  S.)    69    (see  49  B.  299). 

(2)  Nuisance.  What  is.— What 
amount  of  annoyance  or  inconve- 
nience will  constitute  a  nuisance 
depends  upon  circumstances,  and  a 
nuisance  cannot  be  precisely  de- 
fined. Columbus,  etc.,  Co.  v.  Free- 
land,  12  O.  B.  392. 

Houses  of  ill  fame  are  nuisances, 
subject  to  municipal  regulation. 
Crofton  v.  State,  25  O.  S.  249.  So 
are  hack-stands  in  streets.  Brana- 
han  v.  Hotel  Co.,  39  O.  S.  333.  Open 
pit  in  unenclosed  lot  in  town.  Hess 
v.  Lupton,  7  O.,  pt.  1,  216.  Box- 
ing contests  for  prizes  held  in  pub- 
lic.    State  v.  Hobart,  8  N.  P.  246. 

But  obstructions  caused  by  build- 
ing are  not  nuisances.  Clark  v. 
Fry,  8  O.  S.  358.  Nor  bicycle  rid- 
ing on  sidewalk.  Custer  v.  New 
Philadelphia,  20  C.  C.  177.  Nor  a 
stream  of  water.  Deming  v.  Cleve- 
land, 22  C.  C.   1. 

Gas  works  are  not  a  nuisance,  and 


a  municipality  cannot  arbitrarily 
declare  them  to  be  such,  or,  unless 
they  in  fact  become  a  nuisance,  pro- 
hibit them  within  a  certain  district 
or  require  that  the  consent  of  pri- 
vate property  owners  be  obtained  be- 
fore permitting  their  operation  else- 
where. Defiance  v.  Gas  and  Elec- 
tric Company,  12  Dec.  424. 

The  drilling  of  gas  or  oil  wells 
within  a  certain  distance  of  dwell- 
ings may  be  prohibited.  Cline  v. 
Kirkbride,  22  C.  C.  527. 

Whether  blasting  with  gunpowder 
in  city  is  a  nuisance,  see  Tiffin  v. 
McCormack,  34  O.  S.  638.  Obstruct- 
ing flow  of  water.  Tootle  v.  Clifton, 
22  O.  S.  247. 

The  question  what  is  and  what  is 
not  a  public  nuisance  is  a  judicial 
one,  and  it  is  not  competent  to  dele- 
gate it  to  the  local  legislative  or 
administrative  boards;  the  local 
declaration  that  a  nuisance  exists 
is,  therefore,  not  conclusive,  and  the 
party  concerned  may  contest  the 
fact  in  court.  Deming  v.  Cleveland, 
22  C.  C.  1,  11. 

What  nuisance  may  be  abated. — 
A  city  has  no  authority  to  cause  to 
be  abated  any  nuisance  other  than 
a  public  nuisance.  Whitcomb  v. 
Springfield,  3  C.  C.  244. 

Extent  of  regulation  *of  nuisance. 
— City  cannot  create  civil  liability 
for  nuisance.  Veigel  v.  Lukenheim- 
er,  10  B.  293;  Vandyke  v.  Cincin- 
nati, 1  Disney  532;  Chambers  v. 
Ohio,  etc.,  Co.,  1  Disney  327. 

Power  in  a  municipality  to  com- 
pel removal  of  a  nuisance  includes 
power  to  require  work  done  so  as  to 
prevent  its  recurrence.  Bliss  v. 
Kraus,  16  O.  S.  54. 

Power  of  board  of  health  over 
nuisances,  see  §  2122  R.  S.,  p.  425. 

(3)  Extent  of  regulation  of 
smoke.. — Under  section  such  as 
this,  giving  power  to  regulate  con- 


Code  §  7] 


GENERAL    POWERS. 


47 


sumption  of  ?moke,  a  city  is  not 
authorized  to  declare  that  dense 
smoke  is  a  nuisance  per  se,  but  only 
if  it  causes  injury  or  annoyance. 
Cleveland  v.  Malm,  5  N.  P.  203; 
Sigler  v.  Cleveland,  3  N.  P.  119. 

An  ordinance  prohibiting  "  dense  " 
smoke  is  void,  for  uncertainty.  lb. 
Under  this  paragraph  a  city  may 
create  a  supervising  engineer's  de- 


partment to  regulate  and  compel 
consumption  of  smoke.  Cincinnati 
v.  Gass,  13  Dec.  703;  1  N.  P.  (N.  S.) 
169.  Power  to  appoint  such  engi- 
neer would  vest  in  the  mayor,     lb. 

(4)  Steam  whistles. —  Without 
this  express  grant  of  power  council 
could  not  prohibit-  the  blowing  of 
steam  whistles.  Whitcomb  v.  Spring- 
field, 3  C.  C.  244. 


4.  [Houses  of  ill  fame.]  To  suppress  and  restrain  disor- 
derly houses  and  houses  of  ill  fame/  and  to  provide  for  the 
punishment  of  all  lewd  and  lascivious  behavior2  in  the  streets 
and  other  public  places. 


(1)  Are  nuisances.— A  house 
of  ill  fame  is  a  nuisance.  Crofton 
v.  State,  25  O.  S.  249. 

Defined.— See  §    (4364-1)   R.  S. 

Powers  of  board  of  health. — 
See  §  2118  R.^S.  and  notes,  p.  422. 


(2)  Lewd  behavior. —  Ordinance 
prohibiting  walking,  riding  or  con- 
versing with  any  lewd  female,  is  not 
authorized  by  a  section  such  as  this. 
Cady  v.  Barnesville,  4  Dec,  (Re) 
396. 


5.  [Intoxicating  liquors.]  To  regulate *  ale,  beer,  porter 
houses  and  shops,2  and  the  sale  of  intoxicating  liquors  as  a 
beverage  But  nothing  in  this  act  shall  be  construed  to  amend, 
repeal  or  in  any  way  affect  the  provisions  of  an  act  entitled, 
"  An  Act  to  amend  section  4364-20  of  the  Eevised  Statutes  of 
Ohio,  and  to  supplement  said  section  by  enacting  supplementary 
sections  4364-20a,  4364-20&,  4364-20c,  4364-20d,  4364-20e, 
4364-20/,  4364-20^,  4364-20&  and  4364-20t/'  passed  April  3, 
1902.     (95  O.  L.  87.)8 


(1)  Meaning    of    "regulate." 

—  For  a  consideration  of  the  scope 
of  the  word  "  regulate,"  see  Brown 
v.  Van  Wert,  4  C.  C.  407,  411,  and 
the  same  case  in  47  O.  S.  477,  and 


Bronson  v.  Oberlin,  41  O.  S.  476, 
483. 

Power  to  regulate  does  not  include 
power  to  prohibit  saloons  in  certain 
districts.  Berning  v.  Norwood,  1  O. 
L.  R.  25,  29  (aff'd  72  O.  S.  593). 


48 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  7 


(2)  As  nuisances. —  Place  of 
habitual  resort  for  tippling  is  a 
nuisance.  Miller  v.  State,  3  O.  S. 
475. 

Extent  of  power. —  Under  a 
general  statute  giving  power  to  pass 
ordinances  for  the  "  health,  safety, 
morals,  etc.,"  of  the  city,  it  was 
held  a  municipal  corporation  could 
not  prohibit  the  opening  of  shops, 
including  saloons,  on  Sunday  with- 
out excepting  cases  of  necessity  and 
charity,  and  the  case  of  those  who 
conscientiously  observe  the  seventh 
day  of  the  week.  Canton  v.  Nist,  9 
O.  S.  439.  And  could  not  prohibit 
the  sale  of  wine,  etc.,  in  less  quanti- 
ties than  a  gallon.  Thompson  v.  Mt. 
Vernon,  11  0.  S.  688.  But  under 
a  statute  expressly  giving  the  power 
to  "  regulate,  restrain  and  prohibit 
ale,  beer  and  porter  houses,"  it  was 
held  a  city  has  authority  to  provide 
for  the  punishment  of  the  keeper  of 
any  place  where  ale,  etc.,  is  habit- 
ually sold  or  furnished,  to  be  drunk 
at  such  place.  Burckholter  v.  Mc- 
Connellsville,  20  O.  S.  308.  And 
under  a  statute  giving  power  to 
regulate  such  places,  a  municipality 
may  prohibit  and  punish  the  em- 
ployment of  females  in  places  where 
liquor  is  sold.  Bergman  v.  Cleve- 
land, 39  O.  S.  651.  And  may  for- 
bid any  person  to  keep  such  place 
open  on  Sunday,  though  no  excep- 
tion is  made  in  cases  of  necessity  or 
charity  or  in  favor  of  those  who 
conscientiously  observe  the  seventh 
day  of  the  week.  Piqua  v.  Zimmer- 
lin,  35  O.  S.  507. 

A  part  of  an  ordinance  forbidding 
keeping  open  on  Sunday,  providing 
that  lighting  up  of  the  room  where 
liquor  is  sold  shall  be  prima  facie 
evidence  of  keeping  open,  though  in- 
valid, does  not  render  the  ordinance 
void.  Piqua  v.  Zimmerlin,  35  O.  S. 
507. 


Ax\  ordinance  fixing  the  hours  of 
closing  and  opening  saloons,  and  re- 
quiring closing  between  ten  P.  M. 
and  six  A.  Mv  is  valid.  Weaver  v. 
Mt.  Vernon,  7  N.  R  374.  To  the 
same  effect,  Bauer  v.  Avondale,  4  B. 
12. 

An  ordinance  requiring  saloons  to 
remove  all  screens  and  to  h9ve  a 
bright  light  at  ten  o'clock  at  nJght 
is  constitutional.  Editorial  note,  34 
B.  39;  Washington  v.  Gallagher,  7 
N.  P.  511. 

Exceptions  in  ordinance. — 
Where  a  municipal  corporation  fol- 
lows the  authority  given  in  a  stat- 
ute for  the  passage  of  an  ordinance, 
it  is  not  necessary  to  include  all  the 
exceptions  in  other  statutes  relating 
to  the  same  subject  matter.  Edis 
v.  Butler,  8  N.  P.  183,  (aff\?  68  O. 
S.  645). 

An  ordinance  passed  under  »  sec- 
tion such  as  this  need  not  except 
drug  stores.  Emery  v.  Elyria,  8  N. 
P.  208. 

There  was  held  to  be  no  incon- 
sistency between  paragraph  5  of  § 
1692  (which  is  similar  to  paragraph 
5  of  the  present  Code  section)  and 
§  4364-20  R.  S.,  and  an  ordinance 
prohibiting  keeping  places  where  in- 
toxicants are  sold  open  on  Sunday 
without  containing  the  exceptions 
in  §  4364-20  R.  S.  was  held  to  be 
valid.  Emery  v.  Elyria,  8  N.  P. 
208. 

State  law  on  same  subject. — 
A  village  may  pass  a  Sunday  closing 
ordinance,  although  there  is  a  state 
law  to  the  same  effect.  State  v. 
Ulm,  7  N.  P.  659.  But  ordinance 
must  contain  exceptions  provided  in 
the  statute  under  which  it  is  passed. 
Akerman  v.  Lima,  7  N.  P.  92. 

Ordinances  may  be  passed  provid- 
ing for  punishment  of  some  act 
which  is  made  criminal  by  state 
statutes  and  offenders  may  be  pun- 
ished in  both   jurisdictions   for  the 


Code  §  7] 


GENERAL    POWEKS. 


49 


same  act.  Emery  v.  Elyria,  8  N.  P. 
208. 

The  jurisdiction  to  punish  under 
a  state  law  and  under  a  municipal 
ordinance  is  concurrent.  Wightman 
v.  State,  10  O.  452;  and  convic- 
tion in  one  jurisdiction  would  be  a 
bar  to  prosecution  in  the  other.  /&. 
But  see  Emery  v.  Elyria,  8  N.  P. 
208. 

Recovery    of    penalty. — A   civil 


action  may  be  maintained  by  a  mu- 
nicipal corporation  to  recover  the 
penalty  imposed  by  ordinance  for 
retailing  intoxicating  liquors.  Mar- 
kle  v.  Akron,  14  O.  586. 

Intoxicating  liquors.  —  Strong 
beer  is  an  intoxicating  liquor  within 
the  meaning  of  an  ordinance  forbid- 
ding retailing  intoxicants  without  a 
license.    Markle  v.  Akron,  14  O.  586. 

(3)  Beal  law  here  referred  to 
will  be  found  on  page  803  et  seq. 


8.  [Taverns.]  To  regulate  taverns  and  other  houses  for 
public  entertainment. 

7.  [Theatrical  exhibitions  and  tickets.]  To  regulate,  by 
license  or  otherwise,  restrain  or  prohibit  theatrical  exhibitions 
and  public  shows  of  whatever  name  or  nature,  for  which  money 
or  other  reward  is  demanded  or  received  f  to  regulate,  by  license 
or  otherwise,  the  business  of  trafficking  in  theatrical  tickets  or 
other  tickets  of  licensed  amusements,  by  parties  not  acting  as 
agents  of  those  issuing  the  same,  but  public  school  entertain- 
ments, lecture  courses  and  lectures  on  historic,  literary  or  scien- 
tific subjects  shall  not  come  within  the  provisions  of  this  section. 
[97  v.  505.] 


(1)  License  fees. —  Under  a 
provision  such  as  this  a  municipal 
corporation  may  exact  a  license  fee 
from  theatrical  exhibitors.  Such 
exaction  is  not  violative  of  the  con- 
stitution. Baker  v.  Cincinnati,  '11 
O    S.  534. 

The  authority  to  fix  the  amount 
of  license  fees  may  be  delegated  to 
the  mayor  within  the  limits  fixed 
by  council.  Ex  parte  Ryan,  7  B. 
50, 


Prohibition. —  Council  could  not 
prohibit  a  performance  unless  it 
were  given  for  pay  or  reward.  Ex 
parte  Ryan,  7  B.  50. 

Sales  of  reserved  seats  after 
doors  open. —  An  ordinance  for- 
bidding sale  of  reserved  seats  after 
the  doors  are  opened  would  be  valid 
and  a  speculator  who  bought  the 
tickets  the  day  before  would  be 
subject  to  the  prohibition.  Cincin- 
nati v.  Brill,  7  N.  P.  534. 


8.     [Auctions.]  To  regulate  auctioneering;1   and  to  reg- 

ulate, license  or  prohibit  the  sale  at  auction  of  goods,  wares 
and  merchandise  or  of  live  domestic  animals  at  public  auction 
in  the  streets  or  other  public  places  within   the  corporation; 


50 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §7 


and  to  regulate,  license  or  prohibit  the  selling  of  goods,  mer 
chandise  or  medicines  on  the  streets.2 


(1)  "Auctioneer"     defined.  — 

An  auctioneer  is  a  person  who  dis- 
poses of  goods  or  lands  by  public 
sale  to  the  highest  bidder.  Cran- 
dall  v.  State,  28  O.  S.  479. 

A  person  who,  being  in  the  busi- 
ness of  selling  merchandise  at  reg- 
ular retail  prices,  sells  a  portion  of 
them  at  his  store-room  by  public 
outcry,  but  selling  at  the  regular  re- 
tail price,  is  not  an  auctioneer.    76. 

One  merely  employed  in  conduct- 
ing the  sale  is  not  subject  to  prose- 
cution under  auction  license  law. 
Cincinnati  v.  Withers,  5  Dec.  570. 

Criers  of  tobacco  at  warehouse 
sales  held  not  to  be  auctioneers. 
Cincinnati  v.  Withers,  5  Dec.  570. 

(2)  Regulation  and  license. — 

Under  the  authority  given  by  the 
statute  "to  regulate  auctioneering" 
city  councils,  in  view  of  promoting 
the  order,  comfort  and  convenience 
of  the  inhabitants,  may  pass  ordi- 
nances regulating  sales  at  auction 
upon  the  streets,  alleys,  sidewalks 
and  public  grounds  of  the  city,  and 
may  subject  the  occupation  of  auc- 
tioneering to  such  police  regula- 
tions as  seem  essential  to  the  pub- 
lic convenience  and  protection.  Sipe 
v.  Murphy,  19  0.  S.  536,  543. 

Even  without  express  statutory 
provision,  but  under  the  general 
laws  to  provide  for  the  safety, 
health,  etc.,  it  is  held  a  city  may 
by  ordinance  prohibit  sales  at  auc- 
tion in  the  streets  or  public  places 
of  the  city,  and  an  ordinance  of  this 


character  would  not  be  unreason- 
able or  in  restraint  of  trade.  White 
v.  Kent,  11  O.  S.  550. 

As  to  regulation  and  prohibition 
of  sales  at  auction  of  goods  im- 
ported into  the  corporation  for  that 
purpose,  see  Sipe  v.  Murphy,  49 
O.  S.  536;  Brunner  v.  Harrison,  25 
C.  C.  247;   1  C.  C.    (N.  S.)    111. 

For  provision  for  issuing  the 
state  license  to  auctioneers  and  pay- 
ment of  pPo  rata  duties  on  all  prop- 
erty and  effects  exposed  to  sale  by 
public  auction,  see  §§  4222  to  4238 
R.  S. 

Paragraph  9  of  former  section 
1692  (which  corresponds  to  para- 
graph 8  of  the  present  section  of 
the  code)  was  held  not  to  be  In- 
consistent with  sections  4222  to 
4238  R.  S.  Sipe  v.  Murphy,  49 
O.  S.  536, 

For  further  provision  giving  coun- 
cil power  to  license  hawkers,  ped- 
dlers, auctioneers  of  horses,  etc.,  see 
§2669  R.  S.,  page  73. 

Reasonableness  of  license  fee. 

— A  city  ordinance  imposing  a  fine 
of  $25.00  a  day  for  auctioneering 
goods  brought  into  city  for  that  pur- 
pose is  held  an  unreasonable  exer- 
cise of  power.  Sipe  v.  Murphy,  49 
O.  S.  536.  See  also  Glazer  v.  Cin- 
cinnati, 31   B.  243. 

Ordinance  charging  $20.00  per 
day  as  a  license  fee  for  selling 
goods  held  unreasonable.  Newark 
v.  Flatau,  39  B.  239;  see  also  Fla- 
tau  v.  Mansfield,  13  C.  C.  592,  597. 


9.  [Carriages,  drays,  street  cars,  etc.]  To  regulate  the  use 
of  carts,  drays,  wagons,  hackney  coaches,  omnibuses,  automo- 
biles, and  every  description  of  carriages  kept  for  hire  or  livery- 
stable  purposes;  and  to  license  and  regulate1  the  use  of  the 


Code  §  7] 


GENERAL  POWERS. 


50a 


streets  by  persons  who  use  vehicles,  or  solicit  or  transact  busi- 
ness thereon  ;2  to  prevent  and  punish  fast  driving  or  riding  of 
animals,  or  fast  driving  or  propelling  of  vehicles  through  the 
public  highways;  to  regulate  the  transportation  of  articles 
through  such  highways  and  to  prevent  injury  to  such  highways 
from  overloaded  vehicles,  and  to  regulate  the  speed  of  inter- 
urban  traction  and  street  railway  cars3  within  the  corporation. 


(1)  Scope  of  words  "license 
and  regulate." — The  power  to  li- 
cense and  regulate  draymen,  etc., 
implies  the  right  of  fixing  the 
terms  upon  which  they  shall  be  per- 
mitted to  exercise  their  calling,  and 
of  forbidding  the  exercise  upon  any 
other  than  the  terms  and  in  the 
manner  prescribed.  Cincinnati  v. 
Bryson,  15  O.  625.  Under  such  a 
section,  a  city  may  require  a  reason- 
able sum  from  draymen,  etc.,  by 
way  of  excise,  on  the  special  em- 
ployment, lb.  Columbus  v.  Jef- 
frey, 13  Dec.  639;  1  N.  P.  (N.  S.) 
265. 

Power  to  license  conferred  on 
council  by  this  paragraph  must  not 
only  be  construed  strictly,  but  the 
object  of  such  power  so  granted  by 
the  state,  unless  there  be  language 
indicating  that  the  grant  is  con- 
ferred for  the  purpose  of  revenue, 
must  be  construed  as  one  for  regu- 
lation merely,  and  an  exercise  of 
the  police  power,  and  not  of  the 
taxing  power;  and  revenue  can  be 
raised  only  as  an  incident  to  regu- 
lation. Columbus  v.  Jeffrey,  13 
Dec.  639;  1  N.  P.  (N.  S.)  265. 

But  ordinance  will  be  presumed, 
in  absence  of  evidence  to  the  con- 
trary, to  be  intended  to  defray  cost 
of  regulation,  and  not  to  raise  rev- 
enue. Columbus  v.  Jeffrey,  16  Dec. 
330. 

(2)  Scope  of  power. — An  ordi- 
nance requiring  a  license  fee  of  all 
persons   using  the   streets  with  ve- 


hicles, and  requiring  license  tags  on 
vehicles,  is  constitutional.  Sterling 
v.  Bowling  Green,  26  C.  C.  581;  5 
C.  C.  (N.  S.)  217;  see  also  Marmet 
v.  State,  45  O.  S.  63;  Little  v.  State, 
8  C.  C.  51. 

The  word  "vehicles"  includes  all 
classes  and  kinds  of  conveyances, 
and  was  not  intended  to  be  confined 
to  conveyances  kept  for  hire.  Ster- 
ling v.  Bowling  Green,  26  C.  C.  581; 
5  C.  C.    (N.  S.)   217. 

Power  conferred  upon  the  auditor 
and  chief  of  police,  in  an  ordinance 
licensing  vehicles  using  the  streets, 
to  examine  vehicles,  if  not  satisfied 
with  description  furnished  by  appli- 
cant for  license,  is  not  judicial  and 
does  not  invalidate  the  ordinance. 
Sterling  v.  Bowling  Green,  26  C.  C. 
581;  5  C.  C.  (N.  S.)  217. 

Speed  ordinance  applying  to  ter- 
ritory outside  of  municipality  as 
well  as  territory  within,  is  not  for 
that  reason  void,  but  is  simply  in- 
operative in  such  outside  territory. 
Chittenden  v.  Columbus,  26  C.  C. 
531;  5  C.  C.   (N.  S.)   84. 

Ordinance  operating  un- 
equally.— An  ordinance  operating 
unequally  as  between  resident  and 
non-resident  owners  of  vehicles,  as 
one  excepting  from  its  operation 
vehicles  used  by  persons  living  out- 
side the  municipality,  is  invalid. 
Columbus  v.  Jeffrey,  13  Dec.  639; 
1  N.  P.  (N.  S.)  265  (aff'd  Circuit 
Court )  ;  Columbus  v.  Jeffrey,  16 
Dec.  330. 


506 


THE    OHIO    MUNICIPAL     CODE. 


[Code  §7 


An  ordinance  imposing  a  license 
fee  on  persons  using  the  streets 
with  vehicles  and,  with  reference  to 
non-residents,  applying  only  to  those 
hauling  heavy  articles  or  peddling 
milk,  vegetables,  etc.,  is  not  invalid 
as  discriminating  unfairly  between 
residents  and  non-residents.  Ster- 
ling v.  Bowling  Green,  26  C.  C.  581 ; 
5  C.  C.   (N.  S.)   217. 

An  ordinance  is  not  unreasonable 
because  it  limits  the  speed  of  auto- 
mobiles and  bicycles  to  seven  miles 
per  hour;  or  because  different  rates 
of  speed  are  prescribed  for  different 
portions  of  a  prescribed  district. 
Chittenden  v.  Columbus,  26  C.  C. 
531;  5  a  C.   (N.  S.)   84. 

Ordinance  regulating  speed  of  au- 
tomobiles is  not  void  because  an- 
other ordinance  allows  street  cars 
to  run  at  a  greater  speed.  Chitten- 
den v.  Columbus,  26  C.  C.  531;  5 
C.  C.   (N.  S.)   84. 

A  license  fee  for  the  use  of  the 
streets  by  vehicles  may  be  graded 
according  to  the  number  of  horses 
used.  Marmet  v.  States  45  O.  S. 
63,    76. 

Hackstands.— A  city,  under  the 
general  power  to  regulate  hacks, 
may  prohibit  hackmen  soliciting 
patronage  at  railway  depots.  Moer- 
der  v.  Fremont,  19  C.  C.  394.  See 
also  Snyder  v.  Depot  Co.,  19  C.  C. 
368. 

A  hackstand  on  side  of  street 
where  stores  front  is  a  nuisance,  and 
an  ordinance  allowing  such  stand 
is  invalid.  Branahan  v.  Hotel  Co., 
39  O.  S.  333. 

Power  to  establish  hackstands, 
see  §2671  R.  S.,  p.  79. 

Automobiles. — See    "an    act   to 

compel  owners  and  operators  of  mo- 
tor vehicles  to  register  with  the 
Secretary  of  State"  (98  O.  L.  320) 
for    state  law    limiting    power     of 


municipalities   in   regulating  use  of 
streets  by  automobiles. 

Street  railways. — This  section 
does  not  confer  power  to  impose 
license  fees  on  street  or  interurban 
railway  companies  for  use  of  streets. 
Columbus  v.  Jeffrey,  13  Dec.  639; 
1  N.  P.   (N.  S.)   265. 

Under  this  section  a  municipality 
may,  by  ordinance,  require  stopping 
of  street  cars  at  any  regular  stop- 
ping place,  upon  signal.  Lockyear 
v.  Covert,  2  C.  C.  (ft.  S.)  389;  25 
C.  C.  486. 

(2)  Speed  of  street  cars. — An 
ordinance  providing  that  the  "sched- 
ule time"  for  operating  electric 
street  railway  cars  shall  not  exceed 
ten  miles  an  hour,  is  invalid  as  be- 
ing unreasonable  in  allowing  such 
cars  to  be  run  at  any  rate  of  speed 
provided  the  "schedule  time"  in  go- 
ing over  the  entire  route,  does  not 
exceed  ten  miles  an  hour.  Lewis  v. 
Cincinnati,  8  N.  P.  417.  But  see 
same  case  in  23  C.  C.  127,  where 
question  is  left  open.  See  also  Gan- 
non v.  St.  Ry.  Co.  64  O.  S.  567. 

With  or  without  an  ordinance, 
the  law  requires  of  the  railway  com- 
pany "reasonable  safety,  in  view  of 
the  facts  and  surrounding  condi- 
tions." Lewis  v.  Cincinnati,  23  C. 
C.    127. 

An  old  ordinance  passed  to  apply 
to  horse  cars  would  not  be  appli- 
cable to  electric  street  railways.   lb. 

Effect  of  ordinance. — Ordinance 
regulating  speed  does  not  determine 
liability  between  company  and  indi- 
viduals in  case  of  accidents,  but  may 
go  to  the  jury  on  the  question  of 
negligence.  Becker  v.  St.  Ry.  Co.  1 
N.  P.  359 ;  East  Cleveland  R.  R.  Co. 
v.  Rosecrans,  24  B.  220;  Ulrich  v. 
Toledo  Consol.  St.  Ry.  Co.,  67  O.  S. 
508   (see  10  C.  C.  635). 

See  further  note    (2)    under  code 


I 


312. 


Code  §  7]  GENERAL  POWERS.  51 

10.  [Animals  running  at  large.]  To  regulate,  restrain  and 
prohibit  the  running  at  large,  within  the  corporation,  of  cattle, 
horses,  swine,  sheep,  goats,  geese,  chickens  and  other  fowls  and 
animals,  and  to  impound1  and  hold  the  same,  and  on  notice  to 
the  owners,  to  authorize  the  sale  of  the  same  for  the  penalty 
imposed  by  any  ordinance,  and  the  cost  and  expenses  of  the 
proceedings;  and  to  regulate  or  prohibit  the  running  at  large 
of  dogs,  and  provide  against  injury  and  annoyance  therefrom, 
and  to  authorize  the  disposition  of  the  same  when  running  at 
large  contrary  to  the  provisions  of  any  ordinance.2 


(1)     Pounds. — -For    provision   as       This    power   can    be    exercised    only 


to  pounds   in  villages,   see   §  4209-1 
R.   S. 

(2)  Cannot  be  abated  as  nui- 
sance.— Authority  to  regulate  run- 
ning at  large  of  animals  is  not 
given  by  general  provisions  giving 
cities     power    to    abate    nuisances. 


when    specifically   granted.      Collins 
v.  Hatch,  18  O.  523. 

Dog  tax. — A  per  capita  dog 
tax  may  be  imposed  as  a  police 
regulation.  Hoist  v.  Roe,  39  O.  S. 
340. 


11.  [Explosives.]  To  regulate  the  transportation,  keeping 
and  sale  of  gunpowder  and  other  explosives  or  dangerous  com- 
bustibles and  materials  and  to  provide  or  license  magazines 
for  the  same.1 


(1)  Scope  of  section. — Ordi- 
nance regulating  transportation  of 
dynamite  and  other  explosives  in 
certain  quantities  along  streets  of 
villages,  is  within  scope  of  section 
such  as  this.  Hays  v.  St.  Marys, 
55  O.  S.  197. 

Under  paragraph  3  of  §  7,  mu- 
nicipality has  power  to  prohibit  ab- 
solutely the  transportation  of  nitro- 
glycerine through  the  streets.  Wal- 
ter v.  Bowling  Green,  26  C.  C.  756; 
5  C.  C.  (N.  8.)  516;  and  under  both 
paragraphs  3  and  11  the  storage  of 


dynamite  or  other  high  explosives 
in  certain  quantities  within  the  mu- 
nicipality, may  be  prohibited  by  or- 
dinance. Hays  v.  St.  Marys,  55  0. 
S.  197.  Such  a  provision  in  an  or- 
dinance is  not  inconsistent  with 
§§  6953,  8853-4  to  8853-8  R.  S.    lb. 

Forfeiture. — Under  section  such 
as  this,  there  is  no  authority  to  de- 
cree a  forfeiture  of  gunpowder,  nor 
can  a  forfeiture  be  declared  without 
notice  and  adjudication.  Cotter  v. 
Doty,  5  O.  394. 

Municipal    liability.  —  Munici- 


52  THE    OHIO    MUNICIPAL    CODE.  [Code    §    7 

pality  is  not  liable  for  damages  against  storing  of  inflammable  oils, 
caused  by  fire  resulting  from  its  Roberts  &  Co.  v.  Cincinnati,  5  Rec. 
failure     to     enforce     an     ordinance      73. 


12.  [Weighing.]  To  regulate  the  weighing  and  measur- 
ing of  hay,  wood  and  coal  and  other  articles  exposed  for  sale, 
and  to  provide  for  the  seizure,  forfeiture  and  destruction  of 
weights  and  measures,  implements  and  appliances  for  measur- 
ing and  weighing  which  are  imperfect  or  liable  to  indicate  false 
or  inaccurate  weight  or  measure,  or  which  do  not  conform  to  the 
standards  established  by  law  and  which  are  known,  used  or 
kept  to  be  used  for  weighing  or  measuring  articles  to  be  pur- 
chased, sold  or  offered  or  exposed  for  sale.1 

(1)  Character  of  regulations,  sealer  of  weights  and  measures  and 
—  A  state  statute  making  it  penal  enforce  by  fine  the  use  of  weights 
to  use  any  measure  but  standard  and  measures  sealed  by  him.  Hud- 
half  bushel  when  buying  wheat  from  dleson  v.  Rufifin,  6  O.  S.  604. 
original  producer  was  held  uncon-  The  power  to  provide  for  weigh- 
stitutional  because  it  protects  only  ing  and  measuring  of  articles  for 
the  producer  and  not  those  selling  sale  does  not  authorize  an  ordi- 
to  him  and  is  class  legislation.  Yea-  nance  forbidding  the  delivery  in 
zell  v.  State,  40  B.  63.  the  city,  without  being  weighed  by 

Under  its  charter  of  1834  and  the  the  city  weigher  of  hay  already  sold 

general  laws  of  the  state  it  was  held  outside     the     city.       Heminger     v. 

that    Cincinnati    could    appoint    a  Cleveland,  3  W.  L.  M.  46. 

13.  [Buildings,  fences,  etc.]  To  regulate  the  erection  of 
buildings 1  and  the  sanitary  condition  thereof,  fences,  bill 
boards,2  signs,  and  other  structures  within  the  corporate  limits ; 
to  require,  regulate  and  provide  for  the  numbering  and  renum- 
bering of  buildings  either  by  the  owners  or  occupants  thereof 
or  at  the  expense  of  the  municipality ;  to  name  or  rename  streets, 
alleys,  highways  and  public  places;  to  regulate  the  repair  of, 
alteration  in  and  addition  to  buildings;  to  provide  for  the  con- 
struction, erection  and  placing  of  elevators,  stairways  and  fire 
escapes  in  and  upon  buildings  ;3  to  regulate  the  construction  and 
repair  of  wires,  poles,  plants  and  all  equipment  to  be  used  for 
the  generation  and  application  of  electricity;  to  provide  for 
the  removal  and  repair  of  insecure  buildings,  bill  boards,  signs 


Code  §  7] 


GENERAL    POWERS. 


53 


and  other  structures,  and  to  provide  for  the  inspection  of  all 
buildings  or  other  structures  4  and  for  the  licensing  of  house- 
movers,  plumbers  and  sewer-tappers  and  vault  cleaners.5 
[97  v.  506.] 


(1)  Buildings  already   erected. 

— A  municipal  ordinance  limiting 
the  height  of  wooden  structures  in  a 
certain  specified  quarter  of  the  city 
cannot  affect  an  owner  whose  build- 
ing was  erected  before  passage  of 
the  ordinance  and  who  seeks  to  move 
it  to  another  part  of  the  same 
quarter.  Cleveland  v.  Lenze,  27  O. 
S.  383. 

(2)  Licensing  bill  posters. — 
See  §§  2669b  and  2669c  R.  S.  infra. 

Regulation  of  material  used. — 
An  ordinance  requiring  the  use  of 
such  incombustible  material  in  the 
erection  of  signs  and  bill  boards 
within  the  fire  limits  as  will  pre- 
vent the  spread  of  fire  and  requir- 
ing the  erection  of  the  same  in  a 
safe  and  secure  manner  is  valid. 
Cleveland  v.  Bryan,  8  N.  P.  552. 

Prohibiting  bill  boards. —  Un- 
der the  former  statutes,  giving  pow- 
er to  municipalities  merely  "  to  reg- 
ulate the  erection  of  buildings, 
fences  and  other  structures  "  it  was 
held  that  an  ordinance  entirely  for- 
bidding the  erection  of  signs,  bill 
boards  and  structures  for  advertis- 
ing was  beyond  the  power  of  the 
municipality  and  void.  Cleveland 
v.  Bryan,  8  N.  P.  552. 


Such  an  ordinance  prohibiting  bill 
boards  at  a  greater  height  than  two 
feet  above  the  level  of  the  adjoin- 
ing street  and  nearer  than  15  feet 
from  the  building  line  on  the  street 
was  held  to  be  unconstitutional  and 
void,  under  the  former  statutes,  as 
a  deprivation  of  the  use  of  proper- 
ty,    lb. 

(3)  Fire  escapes. —  A  law  re- 
quiring owners  of  certain  kinds  of 
buildings  to  provide  fire  escapes  on 
thirty  days'  notice  and  empower- 
ing court  to  enjoin  use  of  building 
until  owner  does  so,  is  valid  as  a 
proper  exercise  of  police  power.  Cin- 
cinnati v.  Steinkamp,  54  O.  S.  284. 

(4)  Discretion  of  building  in- 
spector.—  A  building  inspector's 
discretion  in  issuing  a  permit  can- 
not be  interfered  with  by  injunction. 
Collins  v.  Cleveland,  2  Low.  D.  380. 
See  also  Leibschutz  v.  Black,  15 
Dec.  372;  3  N.  P.  (N.  S.)  392. 

(5)  Regulation  of  sewer  con- 
nections.—Section  1692/=  (2)  R.  S., 
repealed,  the  language  of  which  is 
similar  to  part  of  paragraph  13 
above,  was  held  not  to  authorize  a 
provision  in  an  ordinance  that  catch 
basin  water  closets  must  be  con- 
structed and  sewer  connections  made 
only  by  licensed  sewer  tappers. 
State  v.  Tooker,  5  N.  P.  122. 


14.  [Police  and  fire  departments.]  To  organize  and  maintain 
police  and  fire  departments,  erect  the  necessary  buildings  and 
purchase  and  hold  all  implements  and  apparatus  required  there- 
for.1 


( 1 )  Other  code  provisions  relat- 
ing to  police  and  fire  departments, 
see  §  146  et  seq.  of  the  code,  infra. 


As  to  municipal  power  and  duties 
see  notes  under  §  146  et  seq. 


54 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  7 


15.  [Waterworks;  lighting,  power  and  heating  plants.] 
To  provide  for  a  supply  of  water,  by  the  construction  of  wells, 
pumps,  cisterns,  aqueducts,  water  pipes,  reservoirs  and  waterr 
works,  and  for  the  protection  thereof,  and  to  prevent  unneces- 
sary .waste  of  water,  and  the  pollution  thereof,  and  to  apply 
moneys  received  as  charges  for  water  to  the  maintenance,  con- 
struction, enlargement  and  extension  of  the  works,  and  to  the 
extinguishment  of  any  indebtedness  created  therefor ; *  and  to 
establish  and  maintain  municipal  lighting,  power,  and  heating 
plants,  and  to  establish, .  maintain  and  operate  natural  gas 
plants  and  to  furnish  the  municipality  and  the  inhabitants 
thereof  with  natural  gas  for  heating,  lighting  and  power  pur- 
poses,2 and  to  acquire  by  purchase,  lease  or  otherwise  the  neces- 
sary lands  for  such  purposes,  within  and  without  the  munici- 
pality. 


(1)  Use  of  stream  as  riparian 
owner. —  Municipality  situated  on 
natural  flowing  stream  is  a  ripar- 
ian proprietor,  and  may  use  for  its 
own  purposes  and  for  domestic  use 
of  its  inhabitants  whatever  water 
is  necessary  without  liability  to  low- 
er proprietor.  Canton  v.  Shock  et 
ah,  66  O.  S.  19. 

Such  municipality  has  no  right 
to  materially  diminish  flow  of  wa- 
ter to  injury  of  lower  proprietor  by 
supplying  water  from  the  stream  to 
persons  outside  the  municipality  or 
by  supplying  to  factories  for  power 
purposes  more  than  a  reasonable 
share  of  the  water.     76. 

Contract  with  mill  owner.— 
It  was  held  under  former  §§  2409- 
2415  R.  S.  that  trustees  of  water 
works  might  contract  with  mill 
owner  for  part  of  his  slack  water  for 
their  works.  Fremont  v.  June,  8 
C.  C.  124. 

Nature  of  water  rent. —  Rent 
for  use  of  water   is  an  assessment 


rather  than  a  tax,  and  if  not  paid 
the  premises  can  be  sold  to  pay  it. 
Gallipolis  v.  Trustees,  2  N.  P.  161; 
Alter  v.  City,  56  O.  S.,  47. 

What  property  assessable  for 
water  rent. —  Property  not  adjoin- 
ing, abutting  or  bounding  on  street 
through  which  water  pipe  has  been 
laid,  held'  not  assessable  for  paying 
interest  on  loan  to  erect  water 
works.  Wheeler  v.  Zanesville,  3  C. 
C.  596. 

Power  limited. —  Power  to  assess 
and  collect  water  rents  is  limited  by 
the  statute  conferring  it.  See  Ram- 
sey v.  Columbus,  12  Dec.  725. 

(2)  Other  sections  on  gas 
works. —  The  sections  of  the  Re- 
vised Statutes  relating  to  ownership 
and  regulation  of  gas  works  (2478- 
2486;  2490,  2491)  which  are  general 
in  their  operation  have  not  been  re- 
pealed by  the  Code.  In  the  clause 
above,  however,  the  additional  pow- 
er to  construct  and  operate  heating 
plants  is  given. 


Code    §    7  J  GENERAL    POWERS.  55 

16.  [Health.]  To  provide  for  the  public  health ;  1  to  secure 
the  inhabitants  of  the  corporation  from  the  evils  of  contagious, 
malignant  and  infectious  diseases,  and  to  purchase  or  lease  prop- 
erty or  buildings  for  pest  houses,  and  to  erect,  maintain  and 
regulate  pest  houses,  hospitals  and  infirmaries.2     [97  v.  507.] 

( 1 )  Board  of  Health. —  The  An  ordinance  providing  that  no 
present  clause  does  not  give  author-  person  shall  sell  milk  in  a  city  with- 
ity  to  establish  a  board  of  health  as  out  a  permit  from  its  acting  board 
did  clause  24  of  §  1692  to  which  the  of  health  and  authorizing  examina- 
present  clause  corresponds.  The  tion  and  inspection  of  milk  sold  in 
board  which  is  to  carry  out  the  the  city,  the  places  where  produced 
powers  here  granted  is  elsewhere  and  the  cattle  producing  it  and  pre- 
provided  for.  (§§  187  to  189  inclu-  scribing  regulations  regarding 
sive  of  the  Code.)  health  of  employes,  etc.,  was  held  to 

(2)  Scope  of  regulations. —  An  be  *a  health  ordinance  exclusively 
ordinance  providing  a  reasonable  and  to  be  within  paragraph  24, 
charge  for  supervising  the  work  of  §  1692  R.  S.,  to  which  the  present 
removing  the  contents  of  privy  section  corresponds.  Walton  v.  To- 
vaults  and  for  removing  the  bad  ledo,  3  C.  C.  (N-.  S.)  295;  23  C.  C. 
effects   thereof,    for   which  the    per-  547,   (aff'd  69  O.  S.  548). 

son  cleaning  is  primarily  responsible  Such  an  ordinance  is  constitution- 

and    covering   the    costs    of    issuing  al.     lb. 

permits  to  do  the  work,  and  of  col-  An  ordinance  relating  to  the  sale 

lection   would    be    legal.     Toledo    v.  of  milk  may  require  a   fee   of   one 

Buechele,  21  C.  C.  429.  dollar  for  each  wagon  used  in  the 

But  a  charge  to  cover  the  expense  city  in  selling  milk  and  require  a 

of  disinfecting  the  work,  an  expense  tag   to    be    attached    to    every    such 

which   should  fall  on  the  owner   or  wagon  before  a  permit  will  be  grant- 

the   city,    cannot   be   laid    upon    the  ed.     Such  a  charge  is  not  a  license 

person  doing  the  work.     lb.  in  violation  of  §  2669  R.  S.     lb. 


17.  [Cemeteries  and  crematories.]  To  provide  public  ceme- 
teries and  crematories  for  the  burial  or  incineration  of  the  dead 
and  to  regulate  public  and  private  cemeteries  and  crematories.1 


(1)    Other  provisions  relating  to         Managing   board. —  See   note  to 
cemeteries,  see  §  2516  et  seq.  R.  S.      §  2521  R.  S. 
infra,  and  see  notes  thereunder. 


18.     [Streets,  wharves,  etc.;  conduits;  rolling  roads.]       To  lay 

ofT,  establish,  plat,  grade,  open,  widen,  narrow,  straighten,  ex- 
tend, improve,  keep  in  order  and  repair,  light,  clean  and  sprinkle 
streets,  alleys,  public  grounds,  places  and  buildings,  wharves, 
landings,  docks,  bridges,  viaducts  and  market  places  within  the 
corporation,1  including  any  portion  of  any  turnpike  or  plank 


56  THE    OHIO    MUNICIPAL    CODE.  [Code    §    7 

road  therein,  surrendered  to  or  condemned  by  the  corporation; 
to  regulate  public  landings,  public  wharves,  public  docks,  public 
piers  and  public  basins,2  and  to  fix  the  rates  of  landing,  wharf- 
age, dockage  and  the  use  of  the  same ;  and  to  regulate  the  plant- 
ing, trimming  and  preservation  of  shade  trees  in  streets,  alleys, 
public  grounds  and  places,  and  to  provide  for  the  planting,  re- 
moval, trimming  and  preservation  of  such  trees  and  other  orna- 
mental shrubbery ;  and  to  use,  or  by  ordinance  grant,  for  periods 
not  exceeding  twenty-five  years,  the  use  of  its  streets,  avenues, 
alleys,  lanes  and  public  places,  to  lay  pipes,  conduits,  manholes, 
drains  and  other  necessary  fixtures  and  appliances,  under  the 
surface  thereof,  to  be  used  for  supplying  such  municipality  and 
its  inhabitants  with  steam  or  hot  water,  or  both,  for  heat  or 
power  purposes  or  both;  and  to  use  or  grant,  for  periods  not 
exceeding  twenty-five  years,  the  use  of  its  streets,  avenues,  alleys, 
lanes  and  public  places  for  the  construction  of  inclined  movable 
or  rolling  roads,  for  the  conveying  or  moving  of  freight,  vehicles, 
animals  and  other  property,  and  those  in  charge  of  the  same, 
upon  such  terms  as  the  council  of  such  municipal  corporation 
may  deem  proper;  provided,  that  such  municipal  corporations 
shall  in  all  such  grants  reserve  the  right  to  regulate,  at  intervals 
of  not  less  than  five  (5)  years,  the  prices  which  the  grantee  or 
grantees  may  charge  for  such  heat  or  power,  or  for  the  conveying 
or  moving  of  such  freight,  vehicles,  animals  and  other  property ; 
and  provided,  further  that  no  grant  for  the  use  of  such  streets, 
avenues,  alleys,  lanes  and  public  places  for  the  construction 
of  such  inclined  movable  or  rolling  roads  shall  be  made  until 
there  is  produced  to  the  council  of  such  municipal  corporation 
the  written  consent  of  the  private  property  owners  of  more  than 
two-thirds  of  the  feet  front  of  such  lots  and  lands  abutting  on 
the  street,  avenue,  alley,  lane  or  public  place,  or  part  thereof, 
upon  or  over  which  it  is  proposed  to  construct  such  inclined 
movable  or  rolling  road.     And  that  in  all  municipal  corpora- 


Code   §    7]  GENERAL   POWERS.  57 

tions  which  may  have  heretofore,  by  ordinance  authorized  the 
use  by  any  person  or  corporation,  of  the  streets,  avenues,  alleys,, 
lanes  and  public  places  of  such  municipal  corporation  for  the 
purpose  of  laying  pipes  and  drains  below  the  surface  thereof  to 
convey  and  supply  its  inhabitants  or  the  corporation,  or  both, 
with  heat  by  means  of  steam  or  hot  water,  or  both,  such  ordi- 
nance shall  be  held  as  valid  and  binding  as  if  the  power  in  the 
corporation  to  so  grant  such  use  of  its  streets,  avenues,  alleys, 
lanes  and  public  places  had  been  expressly  provided  by  statute 
prior  to  the  passage  of  such  ordinance  and  in  force  when  the 
same  was  passed  ;3  provided  that  the  council  of  any  such  corpo- 
ration shall  have  power  to  regulate,  by  ordinance,  at  intervals 
of  five  years  the  price  which  such  person  or  company  may 
charge  for  such  heat  or  power.     [97  v.  507.] 

(1)  Powers    held    in    trust   for  etc.,  see  code   §28  et  seq.,  p.   112, 

the  public. — The  powers  conferred  and  notes. 

on  municipal  corporations  with  re-  (2)  Wharfage    regulations.  — 

spect  to  the  opening,  improving  and  A    city    ordinance    requiring    every 

repairing  of  their  streets  and  pub-  "steamboat,     barge,     keelboat     and 

lie  ways  are  held  in  trust  for  pub-  flatboat"  to  pay  wharfage  rent  does 

he  purposes  and  are  continuing  in  not  include  a  ferryboat.     Cincinnati 

their  nature,  to   be  exercised   from  v    Walls,  1  O.  S.  222.     As  to  rights 

time  to  time  as  public  interest  re-  0f   grantee   of    wharf   privileges    by 

quires.    K.  R.  Co.  v.  Defiance,  52  O.  city?  see  Cincinnati  v.  C.  &  C.  Bridge 

s-  262-  Co.,  20  C.  C.  396. 

They  cannot  be  granted  away  or  (3)      Validity. -This      curative 

relinquished   or   their    exercise   sus-  v  {.       ^  ,V    y\A      A  ,   ^"l'iyc 

Bended  or  abridged  Pxoent  whpn  ex-  Provislon  held  valld-     Columbus  v. 

pended  or  abridged  except  wnen  ex  Heating  &  Lifting  Co.,  16  Dec.  311. 

press  legislative  authority  is  given.  mJt    of  gordilfanee'  repudiating 

previous  ultra  vires  ordinance  of 
Municipal  power  and  liability.  character  cured  by  this  section, 
—For  matters  relating  to  power  of  where  no  legal  proceedings  had  to 
council  over  streets,  etc.,  and  duty  have  such  uUra  vires  ordinance  de- 
to  keep  same  in  repair,  etc.,  and  lia-  clared  invalid.  See  lb. 
foility  for  failure  to  keep  in  repair, 

19.  [Canals  and  sewers. J  To  construct,  open,  enlarge,  exca- 
vate, improve,  deepen,  straighten,  or  extend  any  canal,1  ship 
canal  or  watercourse2  located  in  whole  or  in  part  within  the 
corporation,  or  lying  contiguous  and  adjacent  thereto;  to  open, 
construct  and  keep  in  repair  sewage  disposal  works,  sewers,3 
drains  and  ditches,4  to  license  ferries,  to  regulate  the  use  of 
public  docks  and  public  landings,  and  to  establish,  repair  and 
regulate  water  closets  and  privies.5 


58 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  7 


( 1 )   Effect  of  grant  of  canal  to 

city. —  After  a  grant  by  the  state 
tc  a  city  of  a  portion  of  a  canal,  to 
be  used  for  street  and  sewer  pur- 
poses, operating  as  an  abandonment 
of  it  for  canal  purposes,  a  convey- 
ance by  the  state  to  a  private  indi- 
vidual of  the  right  to  surplus  water 
for  power,  did  not  vest  in  such  in- 
dividual a  right  paramount  to  that 
of  the  city  to  make  use  of  the  part 
abandoned  in  such  manner  as  in- 
volved the  destruction  of  the  water 
power.  Elevator  Co.  v.  Cincinnati, 
30  O.  S.  630. 

Abandonment  of  a  canal  to  a  city 
by  the  state  casts  a  liability  on  the 
city  for  such  damages  only  as  would 
constitute  a  demand  against  the 
state.  Hubbard  v.  Toledo,  21  O.  S. 
379. 

A  grant  from  the  state  authoriz- 
ing the  city  of  Toledo  to  enter  upon 
and  occupy  a  part  of  the  Miami  and 
Erie  canal  as  a  public  highway  was 
an  abandonment  of  the  canal  by  the 
state  to  the  city.     lb. 

When  the  state  grants  to  a  city 
a  canal  for  street  purposes  and  af- 
terwards conveys  to  the  city  all  its 
rights  in  such  land  the  latter  deed 
gives  the  city  an  ownership  dis- 
charged from  any  easement  in  the 
public  and  it  can  sell  the  land. 
Paige  v.  Cherry,  17  C.  C.  579. 

The  state  may  abandon  any  part 
of  its  canal  though  grantees  of  wa- 
ter power  are  injured  thereby.  Er- 
kenbrecher  v.  Cincinnati,  2  C.  S. 
C.  R.  412. 

Assessment    for    canal    wall. — 

Assessment  for  street  improvements 
may  include  assessment  for  expense 
of  a  wall  to  protect  the  street 
against  the  waters  of  a  canal.  Such 
a  wall  need  not  necessarily  be  built 
under  the  power  given  the  city  to 
improve  canals,  but  may  be  con- 
structed  as  a   necessary  part    of  a 


street  improvement.     Longworth   v. 
Cincinnati,  34  O.  S.  101. 

(2)  Watercourses.— A  naviga- 
ble watercourse  denned.  Hickok  v. 
Hine,  23  O.  S.  523;  obstruction  of  a 
navigable  stream.     lb. 

Municipality  cannot  divert  course 
of  stream  without  compensation  to 
riparian  proprietors.  Deming  v. 
Cleveland,  22  C.  C.  1. 

See  Sprankle  v.  Cleveland,  12  C. 
D.  644.  (General  power  to  improve 
not  defeated  by  the  special  act  as  to 
making  of  dredging  contracts.) 

(3)  Sewers  a  proper  use  of 
street. —  Sewerage  is  one  of  the 
legitimate  uses  to  which  the  public 
streets  and  alleys  of  a  city  may  be 
appropriated.  Cincinnati  v.  Penny, 
21  O.  S.  499;  Elster  v.  Springfield, 
49  O.  S.  82. 

Limitations  by  other  sections. 

—  Under  section  such  as  this  a 
council  may  construct  a  sewer,  be- 
fore a  system  of  sewerage  has  been 
declared  necessary  and  is  not  re- 
stricted by  sections  relating  to  con- 
struction of  sewers  after  a  system 
has  been  declared  necessary.  Hart- 
well  v.  P.  R.  Co.,  40  O.  S.  155. 

Municipal  liability. — See  note 
(2)  under  code  §  77,  p.  245. 

(4)  Ditches.— See  §4483  et  seq., 
p.  769. 

(5)  Water  closets,  license  fee. 
— Under  a  general  power  to  regu- 
late water  closets  there  may  be 
some  question  whether  a  city  has 
the  power  to  impose  a  license  fee. 
Toledo  v.  Buechele,  19  C.  C.  127, 
129. 

Where  a  city  is  authorized  to 
exact  a  license  fee  from  vault  clean- 
ers and  does  so,  and  also  requires 
a  permit  from  the  board  of  health 
before  cleaning  any  vault,  it  is 
unreasonable  and  unlawful  to  ex- 
act a  fee  for  such  permit.     lb. 


Code  §  7] 


GENERAL    POWERS. 


59 


20.  [Jails,  morgues,  etc.]  To  establish,  erect,  maintain  and 
regulate  jails,  morgues,  houses  of  refuge  and  correction,  work- 
houses, station  houses,  prisons  and  farm  schools.1 


(1)  Farm  school.— For  special 
act  creating  and  regulating  farm 
school  in  the  city  of  Cleveland,  see 
§§  2112-1  to  2112-19  R.  S.  repealed. 

Municipal  liability. —  In  con- 
structing and  maintaining  a  work- 
house, a  municipality  acts  in  its  gov- 
ernmental capacity  and  is  not  liable 


for  injury  to  prisoner  caused  by  neg- 
ligence of  superintendent.  Rose  v. 
Toledo,  24  C.  C.  540;  1  C.  C.  (N.  S.) 
321. 

Regulations. —  Officers  have  in- 
herent power  to  make  reasonable 
regulations  for  discipline.     lb. 


21.  [Public  buildings,  etc.]1  To  establish,  erect,  maintain, 
protect  and  regulate  public  halls,  public  buildings  and  market 
houses;2  and  by  and  with  the  consent  of  the  abutting  property 
owner  or  owners,  or  their  lessee  or  lessees,  to  establish,  main- 
tain, protect  and  regulate,  a  market  place  or  places,  upon  or  on 
any  street  square  or  public  grounds  or  part  thereof,  within  tho 
municipality ;  to  provide  for  the  inspection  of  spirits,  oils,  milk, 
breadstufTs,  meats,  fish,  cattle,  milk-cows,  sheep,  hogs,  goats, 
poultry,  game,  vegetable  and  all  food  products.3     [97  v.  508.] 


(1)  Old  sections. —  Section 
2232  R.  S.  giving  cities  and  villages 
power  to  appropriate  property  for 
markets;  §  2576  R.  S.  giving  coun- 
cil of  any  city  or  village  power  to 
appropriate  property  for,  establish 
and  regulate  markets  and  to  pro- 
vide for  lighting,  watching  and 
cleaning  the  same,  and  §  2577  R.  S. 
giving  council  power  to  regulate 
huckstering  and  forestalling  the 
market,  and  the  sale  of  impure 
meat,  enforcing  its  regulations  by 
seizure  of  goods,  etc.,  are  all  re- 
pealed by  the  new  Code,  and  the 
entire  power  of  municipalities  with 


respect  to  markets  is  expressed  in 
the  above  clause  of  ]  7,  except  that 
the  power  of  appropriation  for  mar- 
ket places  is  given  in  the  second 
clause  of  §  10.  It  would  seem, 
however,  that  the  paragraph  of  § 
7  above  is  broad  enough  to  cover 
all  the  powers  given  in  the  sections 
of  the  Revised  Statutes  referred  to. 
See  Cincinnati  v.  Buckingham,  10 
O.  257,  261.  §§  2187  and  2230  R. 
S.,  relating  to  the  boards  which 
shall  have  the  care  of  markets  are 
also  repealed.  The  supervision  of 
markets  in  cities  is,  by  the  new 
Code  given  to  the  board  of  public 


60 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  7 


service.        (§§    140  and    141);    and 
in  villages,  to  council.      (§  204.) 

(2)  Market  houses.— Dedica- 
tion of  space  to  a  city  for  a  mar- 
ket, gives  the  city  a  right  to  cover 
the  space  with  a  permanent  build- 
ing for  a  flower  market.  Fenton  v. 
Cheseldine,  28  B.  223. 

A  city  may  authorize  the  ob- 
struction of  a  street  by  a  market 
house  and  is  not  liable  to  traveler 
injured  by  such  obstruction.  Black 
v.  Cleveland,  3  W.  L.  M.  96. 

A  taxpayer  has  no  right  to  enjoin 
the  removal  or  abandonment  of  a 
market  house.  Gall  v.  Cincinnati, 
18  O.  S.  563. 

Right  of  abutting  property  owner 
to  enjoin  a  market  as  a  nuisance, 
see  Pruden  v.  Cincinnati,  1  N.  P. 
340. 

A  city  cannot  convert  a  street  in- 
to a  market  house  and  rent  out 
places  on  the  curbstone.  Hites  v. 
Dayton,  6  B.  142. 

The  power  to  maintain  market 
houses  is  a  continuing  one,  and  its 
exercise  is  subject  to  revocation  by 
the  municipality.  Gall  v.  Cincin- 
nati, 18  O.  S.  563. 

(3)  Market  defined. —  A  muni- 
cipal market  consists:  (1)  Of  a 
place  for  sale  of  provisions  and 
articles  for  daily  consumption.  (2) 
Convenient  fixtures.  (3)  A  system 
of  police  regulations  fixing  market 
hours,  making  provision  for  light- 
ing, watching,  cleaning,  detecting 
false  weights  and  unwholesome  food 
and  other  arrangements  calculated 
to  facilitate  the  intercourse  and  in- 
sure the  honesty  of  buyer  and  sell- 
er. (4)  Proper  officers  to  preserve 
order  and  enforce  obedience  to  rules. 
Cincinnati  v.  Buckingham,  10  O. 
257. 

Market  regulations. — Huck- 
stering.— Power  to  regulate  huck- 
stering  does   not  authorize   council 


to  include  in  an  ordinance  persons 
as  hucksters  who  do  not  fall  within 
the  ordinary  meaning  of  that  term. 
Mays  v.  Cincinnati,  1  O.  S.  268. 

Meat  selling. —  A  city  may  pro- 
hibit selling  meat  on  the  sidewalk 
or  street  devoted  to  market  pur- 
poses in  less  than  certain  quantities 
during  market  hours,  where  the  city 
has  provided  a  market  and  stall  for 
rent  at  reasonable  rates.  Keck  vs. 
Cincinnati,  37  B.  57;  and  city  may 
so  prohibit  even  though  a  license  has 
been  given  to  sell  meat.    lb. 

Ordinances  regulating  sale  of 
meat,  etc.,  in  markets  must  be  rea- 
sonable and  just,  when  applied  to 
the  subject  matter.  Kraft  v.  Cin- 
cinnati, 3  N.  P.  195. 

One  licensed  to  sell  meat  from  a 
stand,  if  refused  a  stand  in  the 
market  house  may  sell  in  the  open 
air,  regardless  of  a  market  regula- 
tion forbidding  such  selling.     lb. 

Charge  for  market  stands. — 
An  ordinance  imposing  a  charge  of 
twenty-five  cents  on  every  person 
occupying  a  stand  in  the  open  mar- 
ket spaces  and  a  fine  for  its  non- 
payment to  be  collected  by  process 
and  judgment  forthwith,  is  valid. 
Cincinnati  vs.  Buckingham,  10  O. 
257. 

Where  a  city  has  erected  a  mar- 
ket house  in  a  street  a  cqurt  will 
enjoin  the  licensing  of  hucksters  to 
use  the  remaining  portion  of  the 
street,  to  the  injury  of  abutting 
property  owners.  Wilder  v.  Cincin- 
nati, 1  N.  P.  347. 

Municipal  liability. — A  city  is 
liable  for  injuries  caused  by  dan- 
gerous excavation  in  market  place, 
after  the  city  has  notice  of  the  de- 
fect.    Nitz  v.  Toledo,  22  C.  C.  454. 

It  is  the  duty  of  a  market  super- 
intendent to  see  that  a  market' place 
is  not  rendered  dangerous,  and  if 
such  officer  is  present  when  danger- 


Code    §    7]  GENERAL    POWERS.  61 

ous  excavation  is  made,  the  city  is  market  place,  used  for  many  years 

charged  with  notice.     lb.  as  a  part  of  the  common  thorough- 

A  pedestrian  is  not  a  trespasser  fare.     lb. 
in  walking  on  platform  scales  in  a 

22.  [Bath  houses,  libraries,  etc.]  To  establish,  maintain  and 
regulate  public  baths  and  bath*  houses,  drinking  fountains,  water 
troughs  and  public  toilet  stations ;  and  free  public  band  concerts ; 
to  establish,  maintain  and  regulate  free  public  libraries  and 
reading  rooms,  and  to  purchase  books,  papers,  maps,  and  manu- 
scripts therefor,  and  to  receive  donations  and  bequests  of  money 
or  property  for  the  same,  in  trust  or  otherwise,  and  to  provide 
for  the  rent  and  compensation  for  the  use  of  any  existing  free 
public  libraries  established  and  managed  by  a  private  corpora- 
tion or  association  organized  for  that  purpose.1     [97  v.  508.] 

( 1 )  Resolution  of  council  to  main-  ized  by  the  statutes  relating  to  free 
tain  a  free  public  library  and  pro-  public  libraries.  Smith  v.  Evans, 
vide  a  site  for  the  same  is  author-       74  O.  B,  —  (51  13.  157a). 

23.  [Hospitals.]  To  provide  for  the  rent  and  compensation 
for  the  use  of  any  existing  free  public  hospital  established  and 
managed  by  a  private  corporation  or  association  organized  for 
that  purpose. 

24.  [Immoral  literature.]  To  restrain  and  prohibit  the  dis- 
tribution, sale  and  exposure  for  sale  of  books,  papers,  pictures 
and  periodicals  or  advertising  matter  of  an  obscene  or  immoral 
nature.1 

(1)  It  was  held  that  publishing  visions  of  former  §  1692  R.  S.,  para- 
obscene  matter  might  be  prohibited  graph  1.  O'Brien  v.  Cleveland,  1 
by    a    city    under   the    general    pro-      Cleve.  100;  4  Dec.  (Re.)   189. 

25.  [Sewage  disposal.]  To  provide  for  the  collection  and 
disposition  of  sewage,  garbage,  ashes,  animal  and  vegetable 
refuse,  dead  animals  and  animal  offal  and  to  establish,  maintain 
and  regulate  plants  for  the  disposal  thereof. 

26.  [Public  grounds,  parks  and  boulevards.]  To  hold  and 
improve  public  grounds,  parks,  park  entrances  and  boulevards,1 


62 


THE    OHIO    MUNICIPAL    CODE. 


[Code 


to  protect  and  preserve  the  same  and  to  acquire  by  purchase, 
gift,  devise,  condemnation  or  otherwise  and  to  hold  real  estate  2 
or  any  interest  therein  and  other  property  for  the  use  of  the 
corporation  and  to  sell  or  lease  the  same.3 


(1)  Railway    through    park. — 

If  a  park  is  donated  to  a  city  for 
park  purposes  and  forbidding  all 
other  purposes,  the  city  has  no 
right  to  grant  a  street  railway  route 
through  it.  Cleveland  Ry.  v.  Bar- 
riss,  33  B.  314. 

Under  the  general  power  to  lay 
off  roads  and  avenues  through  an 
ordinary  public  park,  a  city  may 
authorize  a  street  railway  route  to 
pass  through  the  park  and  may  re- 
serve rent  for  such  use  of  park. 
Mathers  v.  Cincinnati,  3  B.  551. 

(2)  Purchase  of  real  estate. — 
A  municipality  unless  restrained  by 
statute,  has  the  implied  power  to 
purchase  and  hold  all  such  real  es- 
tate as  may  be  necessary  to  the 
proper  exercise  of  powers  specifical- 
ly granted.  Avery  v.  U.  S.,  12  O. 
F.   D.    175. 

Purpose  of  purchase. —  A  munici- 
pality has  no  power  to  purchase 
lands  to  give  away  as  an  induce- 
ment for  parties  to  locate  manufac- 
tories in  the  corporation.  Markley 
v.  Mineral  City,  58  0.  S.  430. 

Where  a  city  thus  seeks  to  give 
property  away,  though  its  deed  is 
of  no  effect,  the  courts  will  not 
interfere  at  the  suit  of  the  munici- 
pality to  set  the  conveyance  aside, 
but  will  leave  the  parties  where  it 
finds  them.     lb. 

A  city  foreclosing  an  assessment 
lien  may  buy  in  the  property  at 
sheriff's  sale  to  save  itself.  Colum- 
bus v.  Schneider,  7  N.  P.  619. 

A  municipality  cannot  purchase 
property  for  the  purpose  of  enter- 
ing on  a  money-making  business. 
Hamilton  v.  Gas  Light  Co.,  8  N. 
P.   319. 

Property  illegally  acquired. — 
Property  acquired  by  a  municipality 
under  an  unauthorized  contract, 
where  restitution  is  impracticable, 
must  be  paid  for.  Cleveland  v.  Den- 
ison,'16  C.  C.  541. 


.  Property  acquired  by  a  city  un- 
der an  unconstitutional  law,  for  a 
valuable  consideration  belongs  to  it, 
the  transaction  being  wholly  exe- 
cuted and  cannot  be  subjected  to  the 
grantor's  creditors.  Heck  v.  Find- 
lay,  etc.,  Co.,  16  C.  C.  111. 

Conditions  in  deed  to  city. —  The 
words  "  as  and  for  a  public  street  " 
in  a  deed  to  a  municipal  corpora- 
tion do  not  ex  proprio  vigore  import 
a  condition.  Avery  v.  U.  S.,  12  O. 
F.  D.  175. 

Acquisition     by     condemna- 
tion.—  See  notes  to  §  10  of  Code. 

Holding  in  trust. —  Municipality 
may  take  in  trust  devise  for  charita- 
ble uses.  Perin  v.  Carey,  3  O.  F.  D. 
634. 

Power  to  hold  ordinarily  includes 
power  to  hold  in  trust.  State  ex. 
rel.  v.  Toledo,  3  C.  C.  (N.  S.)  468; 
23  C.  C.  327. 

What  municipal  property  taxa- 
ble.—  Lands  not  actually  used  In 
exercise  of  municipal  function  are 
taxable,  although  rents  from  them 
are  applied  to  public  purposes.  Cin- 
cinnati v.  Lewis,  66  O.  S.  49.  But 
see  Zumstein  v.  Coal  &  Mining  Co., 
54  0.  S.  264. 

Execution  against  municipal 
property. —  Property  purchased  for 
public  building  purposes  is  exempt 
from  execution.  Cincinnati  v.  Cam- 
eron, 6  Dec.   (Re)   727. 

Exemptions  from  execution,  how 
claimed  and  enforced,  see  State  ex 
rel.  v.  Holden,  12  Dec.  9k 

Appropriation  of  municipal 
property. —  Property  held  for  park 
purposes  may  be  appropriated  for 
railway  right  of  way.  Colby  v.  To- 
ledo, 22  C.  C.  732,  (aff'd  68  O.  S. 
698),  and  municipality  may  waive 
jury  and  agree  to  compensation.  76. 
Property  so  appropriated  does  not 
revert  to  original  owner,  but  such 
owner  is  entitled  to  compensation. 
Newton  v.  Manufacturers'  Rv.  Co., 
14  O.  F.  D.  156. 

(3)  Scope  of  power  to  sell. — 
See  notes  to  §  23  of  Code,  p.  103. 


Code    §    7]  GENERAL    POWERS.  63 

27.  [Census.]  To  take  and  authenticate  a  census  of  the 
municipality.1 

( 1 )   Census  bureaus. —  This  pro-      cers,  etc.,  to  do  the  work  here  per- 
vision    would    seem    to    include    the      mitted. 
power  to  appoint  the  necessary  offi- 

28.  [Conductors  on  street  cars.]  To  require  the  employ- 
ment of  conductors  on  all  street  cars  within  the  corporate  limits.1 

(1)  Conductors. —  Without  such  ployment  of  conductors  on  street 
provision  municipalities  were  held  cars.  Thornhill  v.  Cincinnati,  4  C. 
not  to   have   power   to   require  em-       C.  354. 


29.  [Penalty  for  violation  of  ordinances.]  To  make  the  vio- 
lation of  ordinances  a  misdemeanor,  and  to  provide  for  the 
punishment  thereof  by  fine  or  imprisonment,  or  both ;  provided, 
that  such  fine  shall  not  exceed  five  hundred  dollars  and  such 
imprisonment  shall  not  exceed  six  months.1 

(1)  Old  sections. —  This  para- 
graph seems  to  be  intended  to  cov- 
er the  provisions  of  §§  1861,  1862, 
1863   R.   Sv    which  are   repealed  in 


the  repealing  sections  of  the  Code. 
These  sections  outline  in  detail  how 
municipalities  might  provide  for  the 
enforcement  of  ordinances  by  fines 
and  penalties  and  what  the  amount 
of  such  fines  and  penalties  might  be. 
*For  provisions  relating  to  recov- 
ery of  fines,  see  §§  1864  to  1869  R. 
S.,  inclusive,  in  Part  II. 

Right  to  exercise  power. — 
Making  ordinances,  though  penal 
ones,  is  not  the  exercise  of  a  legis- 
lative power  vested  solely  in  the 
Legislature.  Markle  v.  Akron,  14 
O.  586,  590. 

Judicial  notice  of  ordinances. 
—  Municipal  courts  and  courts  re- 
viewing their  judgments  will  take 
judicial  notice  of  ordinances  in 
prosecutions  for  a   violation  of  the 


same.  Strauss  v.  Conneaut,  3  C. 
C.  (N.  S.)  445;  23  C.  C.  320;  but 
•tate  courts,  in  an  original  action, 
will  not  take  such  notice,  although 
the  ordinances  themselves,  as  printed 
or  recorded  in  the  book  of  ordi- 
nances, or  a  certified  copy  of  them 
will  be  received  in  evidence.  Toledo 
v.  Libbie,  19  C.  C.  704;  aff'd  without 
report,  51  O.  S.  562. 

Forfeitures. —  Power  to  impose 
fines,  penalties  and  forfeitures  gives 
no  power  to  pass  an  ordinance  for- 
feiting property  without  proceedings 
and  notice.  Rosebaugh  v.  Saffin,  10 
O.  31. 

No  city  has  power  to  forfeit  with- 
out legal  adjudication,  as  a  penalty 
for  violation  of  an  ordinance,  unless 
the  power  to  forfeit  is  specifically 
granted.    Cotter  v.  Doty,  5  0.  393. 

Character  of  ordinances. —  An 
ordinance  which  contravenes  the 
policy  of  the  state,  as  declared  in 


63a  the  ohio  municipal  code.       7        [Code  §  8 

general  statutes  is  void.     Canton  v.  Wightman  v.  State,  10  O.  452.     But 

Nist,  9  O.  S.  439.  see  Wellsville  v.  O'Conner,  24  C.  C. 

Sunday   closing.— An   ordinance  689;  1  C.  C.  (N.  S.)  253. 

prohibiting  labor  or  requiring  places  Amount    of    fine. — Section    1862 

of  business  to  be  closed  on  Sunday,  R.     S.    provided    what    amount    of 

which    makes    no    exception    as    to  fine  would  be  reasonable  to  impose 

work  of  charity  or  necessity,  is  in-  for  violation  of  ordinances.     It  was 

valid.     Canton  v.  Nist,  9  0.  S.  439;  neld  this  section  did  not  fix  a  limit 

Strauss  v.  Conneaut,  23  C.  C.   320.  for   amount   of   fine,   and   a   fine   of 

State    and    municipal    jurisdic-  more  than  fifty  but  not  more  than 

tion   to   punish. —  The  jurisdiction  two    hundred    dollars    for    the    first 

to   punish   under  an   ordinance  and  offense  would  not  be   unreasonable, 

under    a    state    law    is    concurrent.  Alliance  v.  Joyce,  49  O.  S.  7. 

30  (l).1  [Licenses.]  All  municipal  corporations  shall  have 
the  power  to  regulate  and  license  manufacturers  and  dealers  in 
explosives ;  pawnbrokers ;  chattel  mortgage  and  salary  loan 
brokers;  peddlers;  public  ball  rooms,  scavengers;  intelligence 
offices ;  billiard  rooms ;  bowling  alleys ;  livery,  sale  and  boarding 
stables ;  dancing  or  riding  academies  or  schools ;  race  courses  ;  ball 
grounds,  street  musicians,  second  hand  dealers  and  junk  shops. 
In  granting  of  any  license  a  municipal  corporation  may  exact 
and  receive  such  sums  of  money  as  the  council  shall  deem  proper 
and  expedient. 

In  the  trial  of  any  action  brought  under  the  power  of  licensing 
herein  given,  the  fact  that  any  party  to  such  action  represented 
himself  or  herself  as  engaged  in  any  business  or  occupation,  for 
the  transaction  of  which  a  license  may  be  required,  or  as  the 
keeper,  proprietor  or  manager  of  the  thing  for  which  a  license 
may  be  exacted,  or  that  such  party  exhibit  a  sign  indicating  such 
business  or  calling,  or  such  proprietorship  or  management,  shall 
be  conclusive  evidence  of  the  liability  of  such  party  to  pay  the 
license  therefor.2      [Amendment,  1904,  April  27,  97  v.   509.] 

(1)  See  note  under  next  sub-sec-  censing  power  and  for  annotations 
tion.  on  this  subject,  see  §§  2669  R.  S.  to 

(2)  Licensing  power. — For  fur-  2672  R.  S.  inclusive  and  notes  p.  73, 
ther   provisions   relating   to   the   li-  et  seq. 


Code    §    8]  GENERAL    POWERS.  63b 

30  (2).1      [Department  of  purchase,  construction  and  repair.] 

To  establish  and  furnish  the  necessary  equipment  for  a  muni- 
cipal department  to  be  known  as  the  department  of  purchase, 
construction  and  repair.  Said  department  shall  be  under  the 
management  and  control  of  the  board  of  public  service  and 
through  it  when  so  established  and  said  board  managing  the 
same  shall  be  made  all  purchases  of  material,  supplies,  tools, 
machinery  and  equipment,  together  with  all  construction,  altera- 
tions and  repairs  of  every  kind  and  thing  in  each  of  the  depart- 
ments of  the  municipality  whether  established  by  law  or  ordi- 
nance. No  purchase,  construction,  alteration  or  repair  shall 
be  made  except,  either  upon  requisition  by  the  board  or  officer 
at  the  head  of  the  department  for  which  the  same  is  to  be  made 
or  done  or  upon  the  order  of  council;  nor  shall  any  purchase, 
construction,  alteration  or  repair  for  any  of  said  departments 
be  made  or  done  except  on  authority  of  council  and  under  the 
laws  as  to  competitive  bidding  if  the  cost  thereof  exceeds  five 
hundred  dollars.      [Supplement,  1904,  May  6,  97  v.  571.] 


(1)  Amendments  of  1904. —  above.  Later,  by  the  act  of  May  6, 
Section  7  of  the  Code  was  first  1904,  §  7  of  the  Code  was  supple- 
amended  by  the  act  of  April  27,  merited  by  the  enactment  of  a  sub- 
1904,  which  amendment,  among  section  with  the  same  number  "  30," 
other  changes,  added  sub-section  30,  which  is  the  second  of  the  para- 
which  is  the  first  paragraph  30  given  graphs  numbered  30  above. 


Sec.  8.  [Other  powers.]  All  municipal  corporations  shall 
have  the  powers  conferred  by  general  law  in  sections  2108,  2109, 
2110,  2111,  2112,  2149,  2150,  2151,  2152,  2516,  2517,  2521, 
2522,  2523,  2524,  2525,  2526,  2527,  2528,  2529,  2530,  2531, 
2532,  2533,  2533a,  2669,  26696,  2669c,  2670,  2670-1,  2671 
and  2672  of  the  Revised  Statutes  of  Ohio  and  all  other  acts  or 


64  THE   OHIO   MUNICIPAL   CODE.  [Code  §  8 

parts  of  acts  not  inconsistent  herewith,  and  having  uniform 
operation  throughout  the  state. 

(b)     Public  Peace. 

Sec.  2108  R.  S.     [Power  of  council  as  to  public  peace,  etc.] 

The  council  of  a  city  or  village  shall  have  power  to  provide  for 
the  punishment  of  persons  disturbing  the  good  order  and  quiet 
of  the  corporation,  by  clamor  and  noise  in  the  night  season,  by 
intoxication,  drunkenness,  fighting,  using  obscene  or  profane 
language  in  the  streets  and  other  public  places,  to  the  annoy- 
ance  of  the  citizens,  or  otherwise  violating  the  public  peace  by 
indecent  and  disorderly  conduct,  or  by  lewd  and  lascivious  be- 
havior; and  they  shall  have  power  in  like  manner  to  provide 
for  the  punishment  of  any  vagrant,  common  street  beggar, 
common  prostitute,  habitual  disturber  of  the  peace,  known 
pickpocket,  gambler,  burglar,  thief,  watch-stuffer.  ball-game 
player,  a  person  who  practices  any  trick,  game,  or  device  with 
intent  to  swindle,  a  person  who  abuses  his  family,  and  any 
suspicious  person  who  can  not  give  a  reasonable  account  of 
himself.1     [66  v.  183,  §  200;  (S.  &  C.  1554).] 


(1)     Scope    of    power. — Where  known   thief   found   in   the   munici- 

the  legislature  has  by  general  law  pality,  is  valid,  and  not  violative  of 

exercised  its  jurisdiction  as  to  the  the  guarantees  in  the  constitution, 

punishment  of  an  offense,  there  is  a  Morgan  v.  Nolte,  37  O.  S.  23. 

presumption  of  its  intention  to  make  A  municipality  has  no  authority 

its  jurisdiction  over  such  subject  ex-  under  this  section  to  make  punish- 

clusive,  and  the  municipality  cannot  able  intoxication  or  being  in  a  state 

provide  for  punishment  of  the  same  of  intoxication;   but  it  may  punish 

offense  unless  the  power  is  clearly  disturbance  of  the  peace  by  intoxi- 

given.      Wellsville   v.    O'Conner,   24  cation.     Jeffries  v.  Defiance,  25  B. 

C.  C.  689;   1  C.  C.   (N.  S.)   253.  68. 

This  section  does  not  give  power  Sections   2108,   2109,   2110   R.    S. 

to   make  the  crime  of  assault  and  give     municipalities     authority     to 

battery    a    municipal   offense.      76.  pass  ordinances  as  to  vagrancy,  but 

See  also  Cleveland  v.  Lovelle,  3  O.  the  exercise  of  the  power  given  by 

L.  R.  648 ;  Esch  v.  Elyria,  27  C.  C.  these  sections  was  held  to  be  option- 

446;   7  C.  C.    (N.  S.)    9.  al,  and  a  city  may,  if  it  sees   fit, 

An  ordinance  under  this  section,  waive    its    option.      Application    of 

providing  for  the  punishment  of  any  Squires,   19  C.  C.  736. 


Code    §    8]  PUBLIC    PEACE    AND    NUISANCES.  65 

Sec.  2109  E.  S.  [Punishment  for  breaches  of  peace,  etc.] 
Such  punishment  may  be  either  by  imposing  and  collecting 
fines,  or  by  imprisonment  in  the  proper  jail  or  workhouse  at 
hard  labor,  or  both,  at  the  discretion  of  the  court;  but  no  such 
person  shall  be  fined  for  a  single  offense  to  exceed  fifty  dollars ; 
and  such  imprisonment  and  hard  labor  shall  not,  for  the  first 
offense,  exceed  thirty  days,  for  the  second  offense  ninety  days, 
for  the  third  offense  six  months,  and  for  the  fourth  or  any 
further  repetition  of  the  offense  one  year.  [66  v.  183,  §  201 ; 
(S.  &  C.  1555).] 

Sec.  2110  R.  S.  [Imprisonment.]  The  council  may  provide 
that  any  person  who  refuses  or  neglects  to  pay  the  fine  imposed 
on  conviction  of  any  such  offense,  and  the  costs  of  prosecution, 
shall  be  imprisoned  and  kept  at  hard  labor  until,  at  the  rate  of 
seventy-five  cents  for  each  day's  labor,  exclusive  of  Sundays,  he 
shall  have  earned  an  amount  equal  to  such  fine  and  costs.  [66 
v.  183,  §  202;  (S.  &  C.  1555).] 

Sec.  2111  R.  S.  [Regulation  as  to  labor.]  The  council  may 
make  suitable  regulations  to  conduct  such  labor  to  the  best  ad- 
vantage, and  in  a  manner  consistent  with  the  age,  sex,  and  health 
of  the  prisoners ;  and  such  labor  may  be  done  at  the  corporation 
prison,  workhouse,  or  elsewhere,  and  under  the  charge  of  such 
officers  or  other  persons  as  the  council  may  select.  [67  v.  75, 
§203;  (S.&C.  1555).] 

Sec.  2112  R.  S.  [Hospitals  for  diseased  prisoners.]  The  coun- 
cil may  provide  suitable  hospitals  for  the  reception  and  care  of 
such  prisoners  as  may  be  diseased  or  disabled;  the  same  to  be 
under  such  regulations,  and  under  the  charge  of  such  persons, 
as  the  council  may  direct.      [66  v.  183,  §  204 ;  (S.  &  C.  1555).] 

(c)  Nuisances. 
Sec.  2149  R.  S.  [Powers  of  municipal  corporations  to  fill  lots, 
remove  obstructions,  etc.]  All  municipal  corporations  shall 
have  power  to  cause  any  lot  of  land  within  their  limits  on  which 
water  at  any  time  becomes  stagnant,  to  be  filled  up  or  drained, 
and  to  cause  all  putrid  substances  to  be  removed  from  any  lot, 
and  to  cause  the  removal  of  all  obstructions  from  all  culverts  or 
covered  drains  on  private  property,  laid  in  any  natural  water- 
course, creek,  brook  or  branch  where  the  same  obstructs  the 
water  naturally  flowing  therein,  causing  it  to  flow  back  or  be- 
come stagnant,  in  a  way  prejudicial  to  the  health,  comfort,  or 
convenience  of  any  of  the  citizens  of  the  neighborhood ; *  and  if 
such  culverts  or  drains  be  of  insufficient  capacity,  to  cause  the 
same  to  be  made  of  such  capacity  as  reasonably  to  accommodate 


66  THE    OHIO    MUNICIPAL    CODE.  [Code    §    8 

the  flow  of  such  water  at  all  times  therein ;  and  the  council  may- 
direct,  by  resolution,2  the  owner  to  fill  up  or  drain  such  lot, 
remove  such  putrid  substance,  or  remove  such  obstructions,  and 
if  necessary  enlarge  such  culverts  or  covered  drains  to  meet 
the  requirements  thereof.  [1884,  March  11:  81  v.  37;  Kev. 
Stat.  1880;  66  v.  225,  §  452.] 

(1)  Scope  of  power. —  A  city  measure.  Bliss  v.  Kraus,  16  O.  S. 
council  cannot  arbitrarily  declare  a       54. 

stream  a  nuisance  and  order  it  Scope  of  such  resolution. — By 
abated.  The  power  to  abate  nui-  reasonable  construction  of  such  reso- 
aances  in  any  way  the  corporation  lution  it  required  not  merely  the  re- 
deems expedient  is  not  an  unre-  rooval  of  stagnant  water,  but  that 
stricted  power.  The  abatement  must  the  work  be  done  in  such  a  way  as 
be  necessary  for  the  public  good  and  to  prevent  the  recurrence  of  stag- 
limited  by  necessity,  and  no  wan-  nant  water.  Bliss  v.  Kraus,  16  O. 
ton  injury  to  property  must  be  com-  S.  54. 

mitted.     Deming  v.  Cleveland,  22  C.  Description    of    premise  s. — 

C.  7t  9.  Where  the  property  described  in  the 

(2)  Validity  of  resolution  di-  resolution  for  the  abatement  of  a 
recting  lots  to  be  filed. —  A  reso-  nuisance  identifies  the  premises,  a 
lution  under  the  Act  of  1852,  similar  misnomer  of  the  township  will  not 
to  this,  directing  lot  owners  to  fill  invalidate  the  proceedings.  Poland 
and  drain  their  lots  in  such  manner  v.  Connolly,  16  O.  S.  64. 

as  should  be  necessary  to  remove  all  See  generally  note  to  paragraph  3, 

stagnant  water,  was  held  to  be  con-       §  7,  of  the  Code, 
stitutional  as  a  reasonable  sanitary 

FORM  OF  RESOLUTION  DIRECTING  OWNERS   OF  LOTS  TO    FILL 
AND  DRAIN  THE  SAME. 

Be  it  resolved  by  the  council  of  the  city  [or  village]  of ,  State 

of  Ohio: 

That  the  owners  of  the  following  lots,  to  wit: —  (insert  description  of 
property  required  to  be  filled  and  drained)  be  and  they  are  hereby  di- 
rected to  fill  and  drain  said  lots  so  as  to  remove  therefrom  all  stagnant 
water. 

That  such  owners  be  required  to  comply  with  tne  direction  herein  given 
within  two  weeks  from  the  receipt  of  notice  hereof  or  the  publication  of 
the  same  as  herein  directed,  and  that  if  the  same  shall  not  be  done  by  that 
time  the  corporation  will  do  the  work  at  its  own  expense  and  collect  the 
amount  thereof  from  such  owners  in  the  manner  provided  by  law. 

The  city  [or  village]  clerk  is  hereby  directed  to  serve  a  copy  of  this 
resolution  upon  the  owners  of  such  lots  or  on  their  agents  or  attorneys  and 

publish  the  same  for  two  consecutive  weeks  in a  newspaper  of  general 

circulation  in  the  corporation. 

Adopted  the day  of ,  19 

Attest :  , 

President  of  Council. 

Clerk. 

o 


Code    §    8]  CEMETERIES  67 

If  it  is  desired  to  direct  putrid  substances  to  be  removed,  obstruction  to 
water  courses  to  be  removed,  culverts  to  be  enlarged,  etc.,  in  accordance 
with  the  above  section,  the  form  given  above  may  be  changed  to  meet 
requirements. 

Sec.  2150  R.  S.     [Duty  of  owner  to  comply  with  direction.] 

It  shall  be  the  duty  of  such  owner,  or  his  agent  or  attorney,  after 
service  of  a  copy  of  such  resolution,  or  after  a  publication  of  the 
same  in  some  newspaper  of  general  circulation  in  such  corpora- 
tion for  two  consecutive  weeks,  to  comply  with  the  directions  of 
the  resolution  within  the  time  therein  specified.  \_66  v.  225, 
§  453.] 

Sec.  2151  R.  S.  [To  be  done  at  owner's  expense,  in  case  of  re- 
fusal or  neglect,  etc.]  In  case  of  failure  or  refusal  to  comply 
with  the  resolution,  the  work  required  thereby  may  be  done 
at  the  expense  of  the  corporation,  and  the  amount  of  money  so 
expended  shall  be  recovered  from  the  owner  before  a  justice  of 
the  peace,  or  other  court  of  competent  jurisdiction;  and  such 
expense  shall,  from  the  time  of  the  adoption  of  the  resolution, 
be  a  lien  on  such  lot,  which  may  be  enforced  by  suit  in  the  Court 
of  Common  Pleas  of  the  proper  county;  and  like  proceedings 
may  be  had  as  directed  in  relation  to  the  improvement  of 
streets.      [66  v.  225,  §  454.] 

Sec.  2152  R.  S.  [Duty  of  health  officers  to  enforce  provisions 
of  this  chapter.]  It  shall  be  the  duty  of  the  officers  connected 
with  the  health  department  of  every  such  municipal  corpora- 
tion, to  see  that  the  provisions  of  this  chapter  are  strictly  and 
promptly  enforced. 

(d)     Cemeteries. 
Sec.  2516  R.  S.     [Council  to  provide  cemeteries.]      The    coun- 
cil may  provide  places  for  the  interment  of  the  dead  outside  of 
the  corporate  limits,  and  the  police  powers  of  the  corporation 
shall  extend  to  those  places.      [66  v.  210,  §  361.] 

Sec.  2517  R.  S.  [Title  to  be  vested  in  corporation.]  The  title 
to,  and  right  of  possession  of  all  public  graveyards  and  burial- 
grounds,  located  within  any  city  or  village,  which  have  been  set 
apart  and  dedicated  as  public  graveyards  or  burial-grounds,  and 
grounds  which  have  been  used  as  such  by  the  public,  but  not 
dedicated,  except  such  as  may  be  owned  or  under  the  care  of  any 
religious  or  benevolent  society,  or  any  incorporated  company 
or  association,  shall  be  and  the  same  are  hereby  vested  in  the 
corporation  where  such  public  graveyard  or  burial-ground  is 
located.      [66  v.  210,  §  362.] 


.68 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  8 


Sec.  2521  R.  S.  [Duties  of  trustees.]  The  trustees  !  shall 
take  possession  and  charge,  and  have  the  entire  management,, 
control,  and  regulation  of  all  public  graveyards,  burial-grounds, 
and  cemeteries  located  in  or  belonging  to  the  corporation, 
subject  to  its  ordinances,  and  they  shall  direct,  whenever 
they  may  deem  it  necessary,  the  laying  out  of  such  grounds  and 
cemeteries  into  lots,  avenues,  walks,  and  paths,  or  other  subdi- 
visions, which  lots  shall  be  numbered,  the  avenues  named,  and 
a  plat  thereof  made  so  as  to  exhibit  a  fair  and  distinct  outline 
of  the  grounds ;  and  the  same  shall  be  kept  in  the  office  of  the 
clerk  of  the  corporation  for  the  use  of  the  public.  [66  v.  211, 
§  366.] 


( 1 )  Managing  board. — In  cities. 
—The  sections  (2518-2520  R.  S.) 
providing  for  the  election  of  boards 
of  trustees  of  cemeteries,  their  terms 
of  office,  etc.,  were  repealed  by  the 
Code.  By  §  141  of  the  Code,  the 
Board  of  Public  Service  is  given 
charge  of  cemeteries  in  cities.  The 
duties,  powers,  etc.,  here,  and  in  sub- 
sequent re-enacted  sections,  would 
therefore  devolve  upon  the  Board  of 
Public  Service. 

In  villages. — In  villages  the  care 
of  cemeteries  is  no  doubt  reposed  in 
council,  since  under  paragraph  17  of 
§  7  of  the  Code,  the  power  is  given 
to  all  municipalities  to  establish 
and    regulate    cemeteries.     In   those 


villages  having  trustees  of  public 
affairs,  as  authorized  in  §  205  of  the 
Code,  such  trustees  may  have  im- 
posed upon  them  by  ordinance  the 
control  and  management  of  ceme- 
teries. This  is  authorized  by  the 
provision  in  §  205  giving  to  the 
trustees  of  public  affairs  "  such 
other  duties  as  may  be  prescribed 
by  law  or  ordinance,  not  inconsist- 
ent herewith." 

By  §  2518  R.  S.  re-enacted  May  3, 
1904,  the  mayor  in  villages  is  given 
power  to  appoint  cemetery  trustees, 
where  there  are  public  cemeteries  al- 
ready or  hereafter  to  be  established. 
See  §  2518  in  Part  II.  (page  731). 


Sec.  2522  R.  S.  [Their  power,  etc.]  The  trustees  1  shall  di- 
rect all  the  improvements  and  embellishments  of  the  grounds 
and  lots,  protect  and  preserve  the  same,  and  appoint,  subject  to 
the  approval  of  the  council,  all  necessary  superintendents,  em- 
ployes, and  agents,  and  determine  their  term  of  office  and  the 
amount  of  their  compensation.2      [66  v.  211,  §  367.] 


(1)  See  note  to  §  2521  K  3., 
supra. 

( 2 )  Bids  for  work. —  It  is  not 
necessary  that  bids  be  advertised  for 
and  received  for  the  work  and  ma- 
terials used,  in  the  improvements 
and  embellishments  here  authorized. 
See  Walsh  v.  Columbus,  36  O.  S. 
169. 


Municipal  liability.— A  city  i<* 
liable  for  injuries  to  an  employee 
while  engaged  in  improving  a  vault 
owned  by  the  city  in  its  cemetery, 
such  injury  occurring  through  the 
negligence  of  the  superintendent  of 
the  cemetery  and  the  board  having 
control  and  management  of  it.  To- 
ledo v.  Cone,  41  O.  S.  149. 


Code    §    8]  CEMETERIES.  69 

Sec.  2523  R.  S.  [May  institute  suits,  etc.]  The  trustees  * 
shall,  when  necessary,  institute  suits  in  the  name  of  the  corpora- 
tion to  recover  the  possession  of  such  grounds,  remove  trespass- 
ers therefrom,  and  recover  damages  for  injuries  thereto,  or  to 
any  tombstone  or  monument  therein,  and  they  shall  see  that  all 
laws  and  ordinances  passed  for  the  protection  of  public  burial- 
grounds  and  cemeteries,  and  the  burial  of  the  dead,  are  enforced. 
[66  v.  211,  §  368.] 

(1)    See    note   to    §    2521    R.    S.,    supra. 

Sec.  2524  R.  S.  [To  make  by-laws,  etc.]  The  trustees  x  shall 
make  such  by-laws  and  regulations,  not  inconsistent  with  the  or- 
dinances of  the  corporation  and  the  constitution  and  laws  of  the 
state,  as  they  deem  useful  and  necessary  for  the  management 
and  protection  of  such  burial-grounds  and  cemeteries  as  may  be 
under  their  control,  and  the  burial  of  the  dead  therein,  which 
by-laws  and  regulations  shall  have  the  same  validity  as  the  or- 
dinances of  the  corporation;  and  they  shall  perform  all  such 
other  duties  pertaining  to  their  office  as  the  council  may,  by 
ordinance,  prescribe.      \_Q6  v.  211,  §  369.] 

(1;    See    note    to    §    2521    R.    S.,  supra. 

Sec.  2525  R.  S.     [Shall  fix  price  of  lots  and  term  of  payment.] 

The  trustees  !  shall  determine  the  size  and  price  of  lots,  and 
terms  of  payment  therefor,  and  shall  give  to  each  purchaser  a 
receipt,  showing  the  amount  paid  and  a  pertinent  description 
of  the  lot  or  lots  sold ;  and  upon  producing  such  receipt  to  the 
proper  officer,  the  purchaser  shall  be  entitled  to  a  deed  for  the 
lot  or  lots  described  therein.  [66  v.  211,  §  370.] 
(1)    See   note   to    §    2521    R.    S.,  supra. 

Sec.  2526  R.  S.     [Charge    for    cemetery    lots    limited.]      No 

more  shall  be  charged  for  lots  than  shall  be  necessary  to  reim- 
burse the  corporation  for  the  costs  of  lands  purchased  or  appro- 
priated for  cemetery  purposes,  and  to  keep  in  order  and  em- 
bellish the  grounds ;  and  provision  shall  be  made  for  the  inter- 
ment in  such  cemetery  of  all  persons  buried  at  the  expense  of 
the  corporation.      [68  v.  130,  §  371.] 

Sec.  2527  R.  S.  [Sale  of  lots,  laying  off  and  embellishing  of 
grounds;  donations;  appointment  of  managing  trustee;  notice  of 
appointment.]  The  trustees  1  shall  have  the  entire  charge  and 
control  of  the  receipts  arising  from  the  sale  of  lots,  and  of  the 
laying  off  and  embellishing  the  grounds.  They  may  receive 
donations  by  bequest,  devise,  or  deed  of  gift,  or  otherwise,  or 


70  THE    OHIO    MUNICIPAL    CODE.  [Code    §    8 

money,  or  other  property;  the  principal  or  interest  of  which 
[is]  to  be  used  for  the  enlargement,  improvement,  embellish- 
ment, or  care  of  the  cemetery  grounds  generally,  or  for  the 
embellishment,  care  or  improvement  of  any  particular  part  or 
parts,  lot  or  lots  therein,  as  the  donor  may  direct,  or  as  the 
trustees  may  from  time  to  time  determine,  if  no  direction  is 
given.  And  they  shall  appoint  one  of  their  number  to  sell  lots, 
receive  payment  therefor,  direct  the  improvements,  and  make 
the  expenditures,  under  such  rules  and  orders  as  they  shall 
prescribe,  and  to  invest,  manage,  and  control  all  property  re- 
ceived by  donations  and  all  surplus  funds  in  their  hands  from 
any  source  whatever.  Notice  of  such  appointment  shall,  upon 
being  made,  be  communicated  to  the  council.  [1887,  March 
16:  84  v.  84;  Kev.  Stat.  1880;  66  v.  211,  §  372.] 

(1)   See   note    to    §    2521    R.    S.,  supra. 

Sec.  2527a  R,  S.     [Permanent  fund  authorized  for  care  of  lots.] 

It  shall  be  the  duty  of  the  trustees  *  of  cemeteries,  the  title  of 
which  is,  by  law,,  vested  in  a  city  or  village  of  this  state,  to  de- 
clare in  their  by-laws  and  regulations  for  the  management  of 
such  cemeteries,  the  amount  of  money  they  will  accept  by  agree- 
ment, gift,  devise,  bequest  or  otherwise  and  hold  as  a  perma- 
nent fund  of  such  cemetery ;  and  that  they  will  pledge  the  faith 
[and  credit]  of  such  city  or  village,  for  the  perpetual  care  of 
such  lot  or  lots  designated,  using  only  the  interest  or  income  of 
such  money.  And  such  trustees  of  cemeteries  shall,  and  they 
are  hereby  authorized,  on  the  receipt  of  such  said  sum  of  money 
they  designate,  to  issue  therefor  a  written  receipt  and  acknowl- 
edgment of  the  same,  signed  by  their  president  and  clerk  there- 
for, and  bind  the  faith  and  credit  of  such  corporation,  holding 
the  title  to  such  cemetery,  to  forever  hold  said  money  as  a  per- 
manent fund,  and  to  provide  perpetual  care  of  the  lot  or  lots 
therein  named,  for  the  use,  income  or  interest  of  such  money. 
And  such  said  trustees  shall,  by  resolution,  enter,  on  the  minutes 
of  their  proceedings,  full  detail  of  such  obligation;  and  shall 
enter  the  receipt  and  incomes  of  said  money  and  the  expendi- 
ture thereof  in  detail  on  their  books  of  accounts,  keeping  each 
case  separately. 

Such  trustees  of  cemeteries  shall,  on  the  passage  of  this  act, 
turn  over  to  the  council  of  the  municipal  corporation,  holding 
title  to  such  cemetery,  all  property  now  on  hand  or  held  by  them 
as  a  permanent  fund,  for  the  perpetual  care  of  lots  in  cemeteries 
under  their  control,  or  such  money  as  may  thereafter  come  to 
them  for  such  purpose,  rendering  a  full  statement  thereof,  by 


Code    §    8]  CEMETERIES.  71 

whom  paid,  when,  and  for  what  purpose;  and  on  the  receipt 
thereof  such  council  shall  acknowledge  the  receipt  thereof  in 
writing  to  said  trustees  signed  by  its  clerk,  and  by  resolution 
duly  passed  and  entered  on  the  minutes  of  its  proceedings, 
wherein,  such  council  shall  pledge  the  faith  and  credit  of  the 
corporation,  it  represents,  to  forever  hold  such  money  as  a 
permanent  fund,  and  pay  in  semi-annual  payments,  to  the  trus- 
tees of  such  cemetery,  as  interest  on  said  funds,  sufficient  to  pro- 
vide perpetual  care  of  such  lot  and  lots  as  agreed  by  such  trus- 
tees, and  such  council  and  its  successors  shall  invest  and  keep  in- 
vested all  of  said  funds  in  any  interest  bearing  debts  of  said 
city  or  village,  if  any,  and  if  no  such  debts  are  owing  by  such 
city  or  village,  such  money  shall  be  invested  in  safe  interest 
bearing  bonds,  or  stock  for  the  benefit  of  such  cemetery  funds, 
that  the  same  may  bear  as  great  an  income  as  possible,  and  all 
such  money  and  the  income  thereof  shall  be  exempt  from  taxa- 
tion, the  same  as  other  cemetery  property.2  [May  10,  1902,  95 
v.  543.] 

(1)  See  note  to  §  2521  R.  S.,  be  considered  as  re-enacted,  though 
supra.  not  mentioned  in  the  list  of  re-en- 

(2)  This  section  was  passed  May  acted  sections  given  in  above  §  8  of 
10,  1902,  as  a  supplement  to  §  2527,  the  Code. 

and  under  §212  of  the  Code,  it  is  to 

Sec.  2528  R.  S.  [Clerk,  and  quarterly  report.]  The  trustees  1 
shall  appoint  a  clerk,  and  keep  accurate  minutes  of  all  their 
proceedings,  and  report  quarterly  to  the  council  all  the  moneys 
received  and  disbursed  by  them  as  such  trustees.      [66  v.  211, 

§  373.] 

(1)    See    note    to    §    2521    R.    S.,  supra. 

Sec.  2529  R.  S.  [Annual  report  to  council.]  The  trustees1 
shall,  annually,  on  the  first  Monday  of  April,  or  as  soon  there- 
after as  may  be  practicable,  report  in  writing  to  the  council, 
the  number  of  lots  sold,  to  whom  sold,  and  the  amount  received 
therefor,  during  the  year  preceding,  and  a  detailed  statement 
of  the  expenditures  during  the  same  period,  showing  the  timt 
and  purpose  of  each  payment,  and  to  whom  made.  [Q6  v.  212, 
§  374.] 

(1)   See   note    to    §    2521    R.    S.,  supra. 

Sec.  2530  R.  S.  [Statement  as  to  funds,  etc.]  Such  report 
shall  also  contain  a  pertinent  statement  whether  the  funds,  if  any 
on  hand,  are  invested,  and  the  character  of  the  securities  there- 


72  THE    OHIO    MUNICIPAL    CODE.  [Code    §    8 

for,  and  such  other  matters  as  the  trustees  1  may  deem  expedi- 
ent or  the  council  may  require.      [66  v.  212,  §  375.] 
(1)    See   note    to    §    2521    R.    S.,  supra. 

Sec.  2531  R.  S.  [Enlargement  of  grounds.]  When,  in  their 
judgment,  an  enlargement  of  any  burial  or  cemetery  grounds 
has  become  necessary,  or  grounds  for  additional  cemeteries 
should  be  provided,  the  trustees  1  shall  report  the  fact  to  the 
council,  and  recommend  such  action  as  they  may  deem  most 
expedient.      [66  v.  212,  §  376.] 

( 1 )    See   note    to    §    2521    R.    EL,  supra. 

Sec.  2532  R.  S.  [Union  of  cities,  etc.,  and  townships  for  ceme- 
tery purposes.]  It  shall  be  lawful  for  the  councils  of  two  or 
more  municipal  corporations,  or  of  such  corporation  or  cor- 
porations, and  the  trustees  of  any  township  or  townships,  when 
conveniently  located  for  that  purpose,  to  unite  in  the  establish- 
ment and  management  of  a  cemetery,  by  the  purchase  or  appro- 
priation of  land  therefor,  not  exceeding  in  extent  one  hundred 
acres,  to  be  paid  for  as  hereinafter  provided.  [66  v.  212,  § 
377;  68  v.  73,  §  1.] 

Sec.  2533  R.  S.  [Election  of  trustees  in  case  of  union.]  When 
two  such  bodies  unite  for  cemetery  purposes  as  provided  in 
the  preceding  section,  the  municipal  corporation  or  township 
having  the  larger  number  of  voters  at  the  last  preceding  annual 
election  for  corporation  or  township  officers,  shall  elect  two  trus- 
tees, one  trustee  for  one  year  and  one  trustee  for  two  years,  and 
the  other  corporation  or  township  shall  elect  one  trustee  for 
three  years,  and  that  at  the  expiration  of  their  respective  terms 
their  successors  shall  be  elected  for  a  term  of  three  years. 
When  three  such  bodies  unite  for  such  purposes  each  of  such 
corporations  or  townships  shall  be  entitled  to  one  trustee,  and 
when  four  or  more  such  bodies  unite  for  such  purposes,  the 
three  corporations  or  townships  having  the  largest  number  of 
voters  respectively  shall  each  elect  one  trustee,  and  at  the  next 
annual  election  the  corporation  or  township,  the  term  of  whose 
trustee  expires,  shall  not  be  entitled  to  a  trustee,  but  the  cor- 
poration or  township  standing  fourth  in  the  number  of  voters 
shall  be  entitled  to  a  trustee,  and  so  on  in  rotation,  so  that  each 
corporation  or  township  shall  be  without  a  trustee  at  regular 
intervals  corresponding  with  the  number  of  corporations  or 
townships  that  may  be  united  in  the  provisions  of  this  chapter, 
and  all  vacancies  in  said  board  shall  be  filled  by  the  council  of 
such  corporation  or  corporations  and  the  trustees  of  such  town- 
ship in  joint  session  convened  for  that  purpose.1  [97  v.  387; 
68  v.  73,  §  2.] 


Code  §  8]  licenses.  73 

(1)  Joint  cemetery  board. —  §§  for  the  management  of  such  proper- 
2533  and  2533a  R.  S.a  in  providing  ties  in  a  manner  different  from  all 
for  the  management  of  cemeteries  other  municipalities,  producing  a  re- 
jointly  owned  by  townships  and  mu-  suit  not  in  harmony  with  the  gen- 
nicipal  corporations,  are  inconsist-  eral  purpose  of  the  new  Code.  To 
ent  with  the  provisions  of  the  new  give  effect,  therefore,  to  the  re- 
Code  giving  to  the  directors  of  pub-  enactment  of  §§  2533  and  2533a, 
lie  service  in  cities  and  councils  in  the  directors  of  public  service  in 
villages  the  control  of  cemeteries.  cities  and  the  council  (or  trustees 
(See  note  to  §  2521  R.  S.,  supra).  of  public  affairs  or  trustees  ap- 
The  control  of  cemeteries  so  given  pointed  under  §  2518)  in  villages, 
must  include  those  owned  jointly  would  represent  their  municipalities 
with  a  township  as  well  as  those  in  the  management  of  cemeteries 
owned  exclusively  by  a  municipal  owned  jointly  with  a  township  as 
corporation.  Otherwise  power  would  above,  and  their  vote  or  votes  in 
be  given  to  a  particular  class  of  SUch  joint  management  would  be  in 
municipalities,  to  wit,  those  whose  the  proportion  given  and  under  the 
cemeteries  are  owned  jointly  with  ru\es  governing  in  said  sections, 
a  township,  to  create  a  special  board 

Sec.  2533a  R.  S.     [Organization   of  board  of  trustees.]    The 

board  of  trustees,  when  appointed  in  pursuance  with  the  provi- 
sions of  Section  No.  2533  shall  organize  by  electing  a  president, 
a  secretary  and  a  managing  trustee,  the  latter  of  whom  shall 
receive  and  hold  all  moneys  coming  into  the  hands  of  such 
board.  Before  entering  upon  the  discharge  of  his  duties,  the 
managing  trustee  shall  give  bond,  with  sureties  to  be  approved 
by  the  president  and  secretary  of  such  board  of  trustees,  payable 
to  them  as  such  officers  in  such  sum  as  they  determine,  and  con- 
ditioned for  the  faithful  discharge  of  his  duties,  and  the  paying 
over  according  to  law  upon  the  order  of  the  board,  of  all  moneys 
that  may  come  into  his  hands  by  virtue  of  his  office.1  [89  v. 
177.] 

( 1 )   See  note  to  §  2533  R.  S.,  supra. 

(e)     Licenses. 
Sec.  2669  R.  S.     [General  licensing  powers  of  council.]      The 

council  of  any  city  or  village  may  provide  by  ordinance  for 
licensing  all  exhibitors  of  shows  or  performances  of  any  kind, 
not  prohibited  by  law,  hawkers,  peddlers,  auctioneers  of  horses 
and  other  animals  on  the  highways  or  public  grounds  of  the 
corporation,  vendors  of  gunpowder  and  other  explosives,  tav- 
erns and  houses  of  public  entertainment,  and  hucksters  in  the 
public  streets  or  markets,  and,  in  granting  such  license,  may 
exact  and  receive  such  sum  of  money  as  it  may  think  reason- 
able ; 1  but  nothing  in  this  section  shall  be  construed  to  author- 
ize any  municipal  corporation  to  require  of  the  owner  of  any 


n 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  8 


product  of  his  own  raising,  or  the  manufacturer  2  of  any  article 
manufactured  by  him,  license  to  vend  or  sell  in  any  way,  by 
himself  or  agent,  any  such  article  or  product ;  provided,  that  in 
cities  and  villages,  the  council  may  confer  upon,  vest  in  and 
delegate  to  the  mayor  of  such  city  or  village,  the  authority  to 
grant  and  issue  licenses  and  revoke  the  same.  Provided  fur- 
ther, that  nothing  herein  contained  shall  be  construed  to  limit 
the  power  conferred  upon  cities  and  villages  in  section  one 
thousand  six  hundred  and  ninety-two  3  of  said  Kevised  Statutes. 
[1889,  March  28:  86  v.  164;  82  v.  148;  77  v.  74;  Eev.  Stat. 
1880;  66  v.  223,  §  447;  76  v.  167,  §  1.] 


(1)   Definition    of    a   license. — 

State  ex  rel.  v.  Hipp,  38  0.  S.  199. 

Constitutionality. —  It  is  within 
the  power  of  the  legislature  to  au- 
thorize municipalities  to  impose  a 
charge  for  licensing.  Though  the 
constitution  does  not  expressly  con- 
fer such  power,  it  is  not  prohibited 
and  may  be  exercised.  Baker  v. 
Cincinnati,  11  O.  S.  534. 

A  license  fee  exacted  from  exhibit- 
ors and  others,  though  a  substantial 
amount,  does  not  violate  the  consti- 
tutional requirement  of  uniformity 
of  taxation,  nor  the  rule  requiring 
a  tax  to  be  according  to  the  true 
value  in  money.  Baker  v.  Cincin- 
nati, 11  O.  S.  534;  and  see  Marmet 
v.  State,  45  O.  S.  63,  and  Cincin- 
nati v.  Bryson,  15  0.  625. 

Subjects  of  licensing  power. 
—  A  town  ordinance  prohibiting  the 
keeping  of  a  grocery  without  a  li- 
cense, is  valid,  though  it  enumerates 
articles  licensed,  to  be  sold,  for 
state  or  county  purposes.  Thomas 
v.  Mt.  Vernon,  9  O.  290. 

Council  would  have  power  to  li- 
cense and  regulate  draymen.  Cin- 
cinnati v.  Bryson,  15  O.  625. 

Hawking  and  peddling  are  proper 
subjects  for  police  surveillance  and 
may  be  licensed,  if  done  without 
discrimination  and  a  reasonable  li- 
cense fee  charged. 


But  council  cannot  by  ordinance 
include  persons  as  hucksters  who  do 
not  fall  within  the  ordinary  mean- 
ing of  that  word.  Mays  v.  Cincin- 
nati, 1  O.  S.  268. 

License  cannot  be  exacted  from 
ticket  brokers  under  the  general  pro- 
visions of  this  section.  The  power 
to  license  such  brokers  must  be  spe- 
cifically given.  Frank  v.  Cincin- 
nati, 7  N.  P.  146.  But  such  license 
would  be  allowed  under  the  provi- 
sions of  §  7,  clause  7,  of  the  Code. 

Exhibitor  of  show  —  Who  is. — 
An  ordinance  forbidding  persons  to 
exhibit  or  participate  in  exhibiting 
a  performance  without  license,  ap- 
plies to  proprietors  and  not  to  per- 
formers.    Ex  parte  Ryan  7  B.  50. 

Auctioneer  —  Who  is. —  Criers* 
of  tobacco  at  warehouse  sales  are 
auctioneers  within  a  section  such  as 
this.     State  v.  Withers,  3  N.  P.  63. 

Reasonableness  of  charge. —  A 
city  ordinance  imposing  a  fine  of 
$25  per  day  for  auctioning  goods 
brought  into  the  city  for  the  pur- 
pose is  an  unreasonable  exercise  of 
power.  Sipe  v.  Murphy,  49  O.  S. 
536. 

An  ordinance  fixing  a  charge  of 
25  cents  a  day  for  occupying  a  stand 
in  market  was  held  good.  Cincin- 
nati v.  Buckingham,  10  O.  257. 

A  license  fee  of  $50  per  day  im- 
posed on  transient  dealers  was  held" 


Code  §8] 


LICENSES. 


75 


unreasonable.  Glaser  v.  Cincinnati, 
31  B.  243. 

An  ordinance  charging  $20  per 
day  as  a  license  fee  for  selling  goods 
imported  into  the  municipality  for 
sale  and  for  advertising  bankrupt, 
receivers',  etc.,  sales  would  be  un- 
reasonable. Newark  v.  Flatau,  34 
B.  239.  (Supreme  Ct.  not  report- 
ed.) See  also  Flatau  v.  Mansfield, 
14  C.  C.  592,  597. 

To  hold  ordinance  invalid  because 
fee  is  excessive,  the  fee  must  be  man- 
ifestly unreasonable  and  oppressive. 
Fee  of  $50.00  a  year  for  certain  per- 
sons selling  goods  upon  the  streets 
held  reasonable.  Murphy  v.  Colum- 
bus, 15  Dec.  60;  2  N.  P.  (N.  S.) 
484. 

Licensing  power  cannot  be 
used  to  tax  an  employment. — 
The  power  of  taxation  is  a  sovereign 
power  and  can  be  exercised  only 
when  expressly  granted.  The  power 
to  tax  employments,  not  being  con- 
ferred on  municipalities,  they  can- 
not exercise  it,  as  a  means  of  pre- 
senting the  employment,  or  other- 
wise. 

The  sum  demanded  for  license  to 
pursue  an  employment,  when  used 
as  a  means  of  supplying  the  public 
treasury,  is  a  tax  upon  such  an  em- 
ployment, and  not  strictly  a  license. 
Such  a  tax  a  municipality  has  no 
power  to  levy.  Mays  v.  Cincinnati, 
1  O.  S.  268. 

When  the  sum  demanded  is,  how- 
ever, "rather  a  price  received  for 
accommodations  provided  by  the 
public,"  it  is  strictly  a  license  fee. 
Cincinnati  v.  Buckingham,  10  O. 
257. 

Requiring  the  fees  to  be  paid  into 
the  street  repair  fund,  does  not  show 
conclusively  that  ordinance  is  for 
purpose  of  raising  revenue,  and  not 
a  price  received  for  accommodations 
provided  by  the  public.  Murphy  v. 
Columbus,  15  Dec.  60;  2  N.  P.  (N. 
S.)  484. 

The  burden  imposed  on  officials 
may  justify  a  license  fee  beyond  the 
mere  expense  of  filling  up  the 
blanks.  Baker  v.  Cincinnati,  11  O. 
S.  534,  543;  Columbus  v.  Jeffrey,  1 
N.  P.  (N.  S.)  265;  13  Dec.  639;  and 
the  fact  that  some  revenue  is  derived 
from  a  license  does  not  make  the 
ordinance  invalid.  lb.;  and  the 
presumption  is  that  the  fee  does  not 
exceed  the  expense  of  regulation,  un- 


less the  contrary  plainly  appears. 
lb. ;  Cincinnati  v.  Bryson,  15  Ohio 
625;  Columbus  v.  Jeffrey,  16  Dec. 
330.  So  an  ordinance,  exacting  a 
license  fee  for  theatrical  exhibitions 
for  six  months  and  also  a  fee  for  the 
officer  issuing  the  license,  was  up- 
held. Baker  v.  Cincinnati,  11  O.  S. 
534. 

Discrimination, — Against  goods 
made  outside  of  state. — An  ordi- 
nance, under  this  section,  requiring 
hawkers  and  peddlers  to  pay  a  li- 
cense, in  so  far  as  it  is  applicable  to 
goods  made  outside  the  state  is  void 
as  a  regulation  of  commerce,  and  a 
dealer  compelled  to  pay  may  recover 
back  license  fee.  Burkhart  v.  Co- 
lumbus, 17  B.  342.  See  also  In  re 
Julius,  26  C.  C.  423;  4  C.  C.  (N.  S.) 
604. 

The  power  to  license  auctioneers 
cannot  be  used  to  discriminate  be- 
tween sales  of  goods  of  the  same 
class  already  in  the  city  and  those 
imported  into  it.  Sipe  v.  Murphy, 
49  O.  S.  536. 

A  city  cannot  discriminate 
against  articles  made  outside  the 
state,  and  an  ordinance  requiring 
canvassers  for  their  sale  to  pay  a 
license  is  void.  Ex  parte  Clamp,  16 
B.  229. 

License  to  sell  goods  is  in  legal  ef- 
fect a  tax  upon  such  goods,  so  that 
if  a  license  to  sell  goods  applies  to 
goods  made  outside  the  state  and 
discriminates  against  them,  it  is 
void  as  a  regulation  of  interstate 
commerce.  Arnold  v.  Yanders,  56 
O.  S.  417,  420. 

As  between  different  persons  in 
municipality. — An  ordinance  is  not 
invalid  because  it  requires  different 
fees  of  persons  using  one  kind  of 
vehicle  from  those  required  of  per- 
sons using  another  kind,  if  the  grad- 
uation of  fees  is  reasonable.  Mur- 
phy v.  Columbus,  15  Dec.  60;  2  N. 
P.   (N.  S.)  484. 

Against  persons  living  outside  of 
municipality. — An  ordinance  requir- 
ing a  license  for  selling  goods  from 
such  persons  only  as  do  not  live  in 
the  municipality  is  void.  Rade- 
baugh  v.  Plain  City,  28  B.  107. 

Character  and  effect  of  license 
ordinances. — An  ordinance  requir- 
ing license  for  all  vehicles  using  the 
streets,  is  applicable  to  non-resi- 
dents transporting  articles  between 


76 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  8 


two  states  and  is  not  void  as  a 
regulation  of  interstate  commerce. 
Bogart  v.  State,  20  B.  458. 

An  ordinance,  under  legislative 
act  requiring  license  fee  for  each 
vehicle  using  the  streets,  the  fee 
being  graded  according  to  the  num- 
ber of  horses  used,  is  constitutional. 
Marmet  v.  State,  45  O.  S.  63. 

A  license  having  been  given  to 
sell  meat  from  a  stand,  the  licensee, 
if  refused  a  stand  in  the  market- 
house,  may  sell  in  the  open  air,  re- 
gardless of  a  prohibition  in  the 
market  regulations  against  such 
selling.  Kraft  v.  Cincinnati,  3  N.  P. 
195,  6  O.  D.  8. 

Ordinance  must  be  reasonable  and 
not  tending  to  foster  a  monopoly. 
lb. 

Forbidding  retail  of  meat  on  side- 
walk or  in  the  street  outside  the 
market-house  on  market  days  is  a 
reasonable  and  valid  ordinance. 
Having  issued  a  license  to  defendant 
to  sell  meat  does  not  surrender  the 
right  to  regulate.  Keck  v.  Cincin- 
nati, 6  O.  D.  97;  37  B.  57,  edit. 

An  ordinance  limiting  statutory 
rights  is  void.  State  v.  Tooker,  5 
N.  P.  122. 

Enforcement. —  Ordinance  may 
provide  that  payment  of  license  fee 
be  compellable  by  fine.  Marmet  v. 
State,  45  O.  S.  63. 

Where  no  other  remedy  for  col- 
lecting a  license  fee  is  provided,  the 
municipality  may  collect  by  civil 
action.  Cincinnati  v.  Beuhausen,  22 
B.  421. 

Authorities  of  a  municipality  may 
arrest  a  proprietor  of  a  variety 
show  who  exhibits  without  a  license, 
but  cannot  close  the  place  or  abate 
the  business  under  §  2669.  Ryan 
v.  Jacob,  6  B.  139. 

Payment  of  license  fee  for  occu- 
pying market  stand  may  be  en- 
forced by  a  fine  imposed  in  a  sum- 


mary process  before  the  mayor. 
Cincinnati  v.  Buckingham,  10  O. 
257. 

Under  a  license  law  requiring  a  li- 
cense for  wagons,  etc.,  using  the 
streets,  the  person  driving  is  not 
liable  for  punishment,  if  he  did  not 
own  the  vehicle  or  have  any  interest 
therein.  O'Rourke  v.  State,  6  C.  C. 
612. 

Recovery  of  illegal  license  fee. 

—  Involuntary  payment. — When  a 
license  fee,  though  illegal,  has  been 
voluntarily  paid,  upon  the  party's 
own  petition  and  without  protest,  it 
cannot  be  recovered  back.  Mays  v. 
Cincinnati,  1  O.  S.  268. 

As  to  what  is  a  voluntary  pay- 
ment to  the  officer  issuing  the  li- 
cense, see  Mays  v.  Cincinnati,  268; 
Baker  v.  Cincinnati,  11  O.  S.  534; 
Stephan  v.  Daniels,  27  O.  S.  527, 
539;  Toledo  v.  Buechele,  19  C.  C.  127 
(affirmed,  without  report,  65  O.  S. 
603). 

In  Toledo  v.  Buechele,  19  C.  C.  127, 
the  rule  as  to  involuntary  payments 
is  thus  laid  down :  "  The  money 
will  be  deemed  to  be  paid  involun- 
tarily, and  may  be  recovered  back, 
where  the  position  or  interests  of 
the  party  paying  it  were  such  as  to 
require  from  another  the  perform- 
ance of  a  duty  enjoined  by  law,  and 
the  party  paying  it,  was  illegally 
compelled  to  pay  the  money  to  in- 
duce the  other  to  perform  such  duty 
for  him." 

One  who  disputes  the  amount  of 
a  license  should  tender  a  reasonable 
amount,  or  pay  and  sue  to  recover 
the  amount  paid  on  any  excess  over 
the  right  amount.  Cincinnati  v. 
Bryson,  15  0.  625;  ex  parte  Ryan, 
7  B.  50. 

Limitation  for  recovery. — Re- 
covery of  license  fee  illegally 
exacted  is  not  limited  to  one  year. 
It  does  not  come  within  §  5848  R.  S. 


Code  §  8] 


LICENSES. 


77 


Toledo   v.    Buechele,    19    C.    C.    127 
(affd.  without  rep.,  65  O.  S.  603). 

Revocation. —  A  license  to  con- 
duct concert  hall  cannot  be  revoked 
by  the  mayor  on  mere  complaint 
that  the  hall  is  disorderly.  Smith 
v.  Major,  16  C.  C.  362. 

Delegation  of  power  by  coun- 
cil.—  Power  granted  to  council  by 
the  legislature,  except  ministerial 
powers,  cannot  be  delegated.  The 
power  to  fix  the  standard  of  com- 
petency of  applicants  for  license  as 
stationary  engineers  is  not  merely 
ministerial  or  executive  power,  but 
involves  discretion  and,  under  a 
statute  to  provide  for  licensing  en- 
gineers, cannot  be  delegated  by 
council  to  inspectors.  Hengst  v. 
Cincinnati,  7  N.  P.  1. 

Validity  of  ordinances. —  This 
section  by  express  words  permits 
council  to  delegate  the  power  to  li- 
cense to  the  mayor.  But  if  this 
is  not  so,  an  ordinance  against  un- 
licensed performances  will  not  be 
held  void  when  a  person  can  pay 
and  recover  back  if  license  fee  has 
been  exacted  wrongfully.  Ex  parte 
Ryan,  7  B.  50. 

Ordinance  not  invalid  because  the 
city  treasurer  and  not  the  mayor 
authorized  to  issue  licenses.  Mur- 
phy v.  Columbus,  15  Dec.  60;  2  N. 
P.    (N.  S.)    484. 

(2)   Manufacturer— Who  is  — 

One  who  buys  cattle  and  converts 
them  into  roasts,  steaks,  etc.,  is  not 
a  manufacturer  under  this  section. 
Tippecanoe  v.  Boercher,  5  C.  C.  6. 
A  tailor  soliciting  orders  for  suits 
of  clothes  and  making  and  deliver- 
ing suits  is  a  manufacturer  within 
meaning  of  this  section  and  cajmot 
be  required  to  pay  a  license  as  a 


peddler.  Radebaugh  v.  Plain  City, 
28  B.  107. 

Fee  for  permits. —  An  ordinance 
relating  to  the  sale  of  pure  milk  in 
a  city  and  requiring  inspection  of 
milk  sold,  required  a  fee  of  one 
dollar  to  be  paid  and  a  tag  attached 
to  each  wagon  used  in  selling  milk, 
before  a  permit  to  sell  in  the  city 
would  be  granted.  It  was  held  that 
the  mere  fact  that  the  fee  was 
charged  and  tag  required  did  not 
constitute  the  permit  a  license  in 
violation  of  this  clause  of  §  2669, 
exempting  vendors  of  their  own 
products  from  payment  of  a  license. 
Such  permit  is  a  mere  step  to  se- 
cure enforcement  of  the  object  of 
tne  ordinance,  viz.,  the  sale  of  pure 
milk,  and  to  enable  the  purchaser  to 
rely  on  the  fact  that  the  require- 
ment of  the  board  of  health  has  been 
complied  with.  Walton  v.  Toledo, 
3  C.  C.  (N.  S.)  295;  23  C.  C.  547, 
(aff'd  69  0.  S.  548). 

Validity  of  limitation,  as  to 
persons  selling  their  own  produce, 
see  Columbus  v.  Jeffrey,  16  Dec.  330. 

Health  regulations. — An  ordi- 
nance which  is  exclusively  a  health 
regulation,  under  the  power  given  in 
former  §  1692  R.  B.  would  not  be 
affected  by  this  clause,  excepting 
vendors  of  their  own  products  from 
payment  of  license,  even  if  such  or- 
dinance should  provide  for  licenses, 
since  §  2669  is  expressly  declared 
not  to  be  intended  to  limit  §  1692. 
Walton  v.  Toledo,  23  C.  C.  547,  3  C. 
C.  (N.  S.)  295  (aff'd  69  O.  S.  548). 

(3)  Section  1692  here  referred  to 
is  repealed  by  the  Code.  Its  pro- 
visions are  substantially  retained, 
however,  in  §  7  of  the  Code. 


Sec.  2669b  R.  S.     [Further  licensing  powers  of  council.]    The 

council  of  any  village  or  city  may  provide  by  ordinance  for 
licensing  bill-posters,  transient  dealers,  persons  who  tempo- 
rarily open  stores  or  places  for  the  sale  of  goods,  wares,  or 
merchandise,  and  all  persons  who  shall,  on  the  street,  or  travel- 
ing from  place  to  place  about  such  village  or  cities,  sell,  bargain 
to  sell,  or  solicit  orders  for  goods,  wares  or  merchandise  by 


78  the  ohio  municipal  code.  [Code  §  8 

retail.    The  granting  of  such  license  shall  be  controlled  by  the 
provisions  of  section  2669.1     [90  v.  311.] 

( 1 )   See  notes  to  §  2669,  supra.  with   the   purpose,   is   unreasonable. 

Constitutionality. — A  provision  Brunner  v.  Harrison,  1  C.  C.  (N.  S.) 

in     an     ordinance     requiring    tran-  111;    25    C.   C.   247.     An   ordinance 

sient  dealers  to  take  out  a  license  requiring  a  license  fee  from  agents 

before  selling  goods  in  the  corpora-  of    portrait    companies    of    another- 

tion,  if  standing  alone,  would  be  un-  state  for  the  privilege  of  canvassing 

constitutional.     Flatau  v.  Mansfield,  for  orders  for  pictures  to  be  manu- 

14  C.  C.  592.     An  ordinance  which  factured  by  such  companies  in  such 

discriminates    in    favor    of    persons  foreign  state,  is  void,  as  a  regula- 

who   form   a   purpose  to   sell    after  tion  of  interstate  commerce.     In  re 

coming      into      municipality      and  Julius,  26  C.  C.  423;  4  C.  C.  (N.  S.) 

against  those  who  come  temporarily  604. 

Sec.  2669c  R.  S.  [Licensing  of  advertising  mediums  and  mat- 
ters.] That  the  council  of  any  city  or  village  may  provide  by 
ordinance  for  licensing  bill-posters,  advertising  sign-painters, 
bill-distributers,  card-tackers,  and  advertising  matter  of  any 
article  or  compound  which  has  not  been  manufactured  or  com- 
pounded within  the  corporation  limits  of  such  municipality.1 
In  granting  such  license  said  council  may  exact  and  receive 
such  sums  of  money  as  it  may  think  expedient,  and  may  dele- 
gate to  the  mayor  of  such  city  the  authority  to  grant  and  issue 
such  license  and  revoke  the  same.  Providing,  that  nothing  in 
this  section  shall  be  construed  to  authorize  the  council  of  any 
city  or  village  to  exact  and  receive  a  license  fee  from  merchants 
doing  business  in  such  city  or  village,  for  advertising  their  own 
business.      [91  v.  362.] 

(1)    See  Flatau  v.  Mansfield,   14  Bill    posters. — Constitutionality 

C.  C.  592,  597,  and  note  to  §  2670-1,       of   license,   see   Angove   v.    State,   8 
infra.  N.  P.  514. 


Sec.  2670  R.  S.  [Licensing  of  vehicles,  undertakers,  etc.] 
The  council  may  also  license  the  owners  of  vehicles  used  for 
the  transporation  of  persons  or  property,  for  hire,  and  all  under- 
takers and  owners  of  hearses ;  but  the  owner  of  any  such  vehicle 
may  be  made  liable  for  the  breach  of  any  ordinance  regulating 
the  conduct  of  the  drivers  thereof.      [66  v.  224,  §  448.] 

Sec.  2670—1  R.  S.  [Licensing  of  transient  dealers.]  That 
the  council  of  any  city  or  village  may  provide  by  ordinance  for 
licensing  transient  dealers  or  persons  who  open  stores  or  places 
for  the  temporary  sale  of  goods,  wares  or  merchandise,  and  in 
granting  such  license  may  exact  and  receive  such  sum  of  money 
as  it  may  think  expedient,  and  may  delegate  to  the  mayor  of 
such  city  or  village  the  authority  to  grant  and  issue  such  licenses 
and  revoke  the  same;  provided,  that  this  act  shall  not  apply 


Code  §  8]  licenses.  79 

to  persons  selling  by  sample  only,  nor  to  any  agricultural  arti- 
cles or  products  offered  or  exposed  for  sale  by  the  producer.1 
[87  v.  100;  86  v.  244.] 

( 1 )   Constitutionality.  —  This  tial,  and  unjustly  discriminating  be- 

act  violates  §§  1  and  2  of  the  bill  of  tween  goods  in  the  municipality  and 

rights    and    is    invalid.     Flatau    v.  goods    brought    in    for    purpose    of 

Mansfield,  14  C.  C.  592.  sale.     lb.;    Newark    v.    Flatau,    34 

An     ordinance     under     such     act  B.  239. 
would  also  be  invalid  because  par- 

Sec.  2671  Itf*S.  [Council  may  prescribe  width  of  tires,  fix 
rate  of  transportation,  etc.]  The  council  may  prescribe  the 
width  of  the  tires  of  all  wagons,  carts,  drays,  and  other  vehicles 
used  in  the  transportation  of  persons  from  one  part  of  the  cor- 
poration to  another,  or  in  the  transportation  of  coal,  wood, 
stone,  lumber,  iron,  or  other  articles  in  the  corporation  f  and 
establish  [ed]  stands1  for  hackney  coaches,  cabs,  or  omnibuses, 
enforce  the  observance  and  use  thereof,  and  fix  the  rates  and 
prices  for  the  transportation  of  persons  and  property  in  such 
coaches  or  other  vehicles  from  one  part  of  the  corporation  [trans- 
portation] to  another.      [66  v.  222,  §  441.] 

(1)   Hack    stand    in    front    of  Section     strictly     construed. — 

stores  on   side  of  street  would  be  This   section   must  be  strictly  con- 

a  nuisance,  and  an  ordinance  estab-  strued.     Hotel   Co.   v.   Branahan,   7 

lishing  such  stand  would  be  invalid.  B.  57. 
See  Branahan  v.  Hotel  Co.,  39  O.  S. 
333. 

Sec.  2672  R.  S.  [License,  regulation,  etc.,  of  ferries.]  The 
council  of  any  city  or  village  shall  have  the  exclusive  power  to 
establish,  regulate,  and  license  ferries,  from  such  corporation, 
or  any  landing  therein,  to  the  opposite  shore,  or  from  one  part 
of  the  corporation  to  another;  and  in  granting  such  license  to 
impose  such  reasonable  terms  and  restrictions,  in  relation  to  the 
keeping  of  such  ferries,  and  the  time,  manner,  and  rates  of  the 
carriage  and  transportation  of  persons  and  property,  as  may 
be  proper ;  and  to  provide  for  the  revocation  of  any  such  license, 
and  for  the  punishment  by  proper  fines  and  penalties,  of  the 
violation  of  any  ordinance  prohibiting  unlicensed  ferries,  or 
regulating  those  established  and  licensed.      [66  v.  223,  §  446.] 


80  THE    OHIO    MUNICIPAL    CODE.       [Code    §§    9,  10 

2.     SPECIAL    POWERS. 

§  9.  [Special  power  of  municipalities.]  All  municipal  cor- 
porations shall  have  the  following  special  powers,1  which  shall 
be  exercised  in  the  manner  hereinafter  provided : 

First.     To  appropriate  property  for  public  purposes. 

Second.     To  sell  or  lease  public  property. 

Third.     To  regulate  the  use  of  streets. 

Fourth.     To  levy  and  collect  taxes. 

Fifth.     To  levy  and  collect  special  assessments. 

Sixth.     To  borrow  money. 

Seventh.     To  maintain  and  protect  a  sinking  fund. 

(1)  Similar  grants  elsewhere.  In  so  far  as  the  powers  granted  in 
—  Some  of  the  special  powers  given  the  list  of  general  powers  are  grant- 
here  are  included  also  in  the  list  ed  also  in  the  list  of  special  powers, 
of  general  powers  in  §  7  of  the  Code.  and  their  manner  of  exercise  speci- 
This  is  true  to  some  extent  of  the  fied,  the  powers  are  limited  by  the 
power  to  sell  and  lease  and  to  ap-  provisions  of  this  section  and  must 
propriate  property  ( §  7,  paragraph  be  exercised  as  herein  provided.  See 
26)  and  of  the  power  to  open  and  Gas  Co.  v.  Tiffin,  59  O.  S.  420,  441; 
repair  streets.     (§  7,  paragraph  18.)  Doll  v.  Barr,  58  O.  S.  113,  120. 

First.     Appropriation    of    Property.1 

§  10.  [Appropriation  of  property.]  All  municipal  corpora- 
tions shall  have  power  to  appropriate,  enter  upon  and  hold, 
real  estate  within  their  corporate  limits  for  the  following  pur- 
poses : 2 

1st.  For  opening,  widening,  straightening,  changing  the 
grade 3  of  and  extending  streets  and  all  other  public  places, 
and  for  this  purpose  the  corporation  may  appropriate  the  right 
of  way  across  railway  tracks  and  lands  held  by  railway  com- 
panies where  such  appropriation  will  not  unnecessarily  inter- 
fere with  the  reasonable  use  of  the  property  so  crossed  by  such 
improvement  ;4  and  for  obtaining  material  for  the  improvement 
of  streets  and  other  public  places. 


Code  §  10]        APPROPRIATION  OF  PROPERTY.  81 

2nd.     For  parks,  park  entrances,  boulevards,  market  places 
and  children's  playgrounds.5 

3rd.     For  public  halls  and  offices,  and  for  all  buildings  and 
structures  required  for  the  use  of  any  department.6 

4th.     For  prisons,  workhouses,  houses  of  refuge  and  correc 
tion,  and  farm  schools.7 

5th.  For  hospitals,  pest-houses,  reformatories,  crematories 
and  cemeteries.8 

6th.     For  levees,  wharves  and  landings.9 

7th.  For  bridges,  aqueducts,  viaducts  and  approaches 
thereto. 

8th.     For  libraries,  university  sites  and  grounds  for  the  same. 

9th.  For  constructing,  opening,  excavating,  improving  or 
extending  any  canal,  or  watercourse,  located  in  whole  or  in 
part  within  the  limits  of  the  corporation,  or  adjacent  and  con- 
tiguous thereto,  and  which  is  not  owned  in  whole  or  in  part 
by  the  state,  or  by  a  company  or  individual  authorized  by  law 
to  make  such  improvements.10 

10th.  For  sewers,  drains,  ditches,  public  urinals,  bath- 
houses, water  closets,  and  sewage  and  garbage  disposal  plants 
and  farms.11 

11th.  For  waterworks,  natural  and  artificial  gas,  and  elec- 
tric lighting,  heating  and  power  plants,  and  for  supplying  the 
products  thereof. 

12th.  For  establishing  esplanades,  boulevards,  park  ways,( 
park  grounds,  and  public  reservations  in,  around  and  leading  to 
public  buildings  and  for  the  purpose  of  reselling  such  land 
with  reservations  in  the  deeds  of  such  resale  as  to  the  future 
use  of  said  lands  so  as  to  protect  public  buildings  and  their 
environs  and  to  preserve  the  view,  appearance,  light,  air  and 
usefulness  of  public  grounds  occupied  by  public  buildings  and 


82 


THE   OHIO   MUNICIPAL   CODE. 


[Code  §   10 


esplanades  and  park  ways  leading  thereto.       [1904,  April  25, 
97  v.  333.] 


(1)  Old  sections.— The  appro- 
priation provisions  of  the  new 
Code  correspond  to  former  chapter  3, 
division  7,  title  12  R.  S.  (§§  2232- 
2261)  repealed.  For  a  judicial  con- 
struction of  former  chapter  3,  see 
Toledo  St.  Ry.  Co.  v.  Fostoria,  7  C. 
C.  293  (aff'd  without  report,  56  O. 
S.  726). 

(2)  Strictly  construed.  —  The 
power  conferred  to  appropriate 
property,  such  as  is  given  by  this 
section,  must  be  strictly  construed. 
Toledo  St.  Ry.  v.  Fostoria,  7  C.  C. 
293,  295  (aff'd  by  Supreme  Court 
without  report,  56  O.  S.  726)  ;  Har- 
beck  v.  Toledo,   11   O.  S.  219. 

Scope  of  powers.— The  lawful 
exercise  of  the  powers  conferred  on 
municipal  corporations  to  enter 
upon  and  take  private  property  for 
certain  purposes  enumerated,  re- 
quires a  legal  appropriation  as  pro- 
vided by  statute,  involving  the  as- 
sessment of  compensation  for  the 
property  when  taken  without  the 
owners'  consent.  Mansfield  v.  Bal- 
liett,  65  O.   S.  45.1,  460. 

Purposes. —  The  determination  of 
particular  purposes  for  which  the 
power  of  eminent  domain  shall  be 
exercised,  rests  entirely  with  the 
Legislature.  Giesy  v.  R.  R.  Co.,  4 
O.  S.  308. 

A  right  to  appropriate  land  for 
a  certain  purpose  may  carry  with  it 
the  right  to  appropriate  for  pur- 
poses incidental  to  the  original  pur- 
pose. Ward  v.  M.  &  N.  Tp.  & 
Bridge  Co.,  6  0.  S.  15. 

A  municipal  corporation  may  ap- 
propriate an  easement  in  land  abut- 
ting on  a  street  for  the  purpose  of 
making  a  sloping  fill  to  afford  lat- 
eral support  to  the  street.  Dodson 
v.  Cincinnati,  34  O.  S.  276. 

Ditches  and  drains  were  held  to 
be  public  uses  which  justify  con- 
demnation. Sessions  v.  Crunkilton, 
20  O.  S.  349;  so  were  canals,  Will- 
yard  v.  Hamilton,  7  O.  pt.  2,  111. 
Municipality    cannot    appropriate 


property  for  a  railroad  under  guise 
of  opening  a  street.  Morehouse  v. 
Norwalk,  6  B.  267. 

Property  already  devoted  to 
public  use. —  Under  the  general 
power  to  lay  off  and  establish 
streets,  a  municipal  corporation  may 
extend  a  street  across  a  right  of 
way  of  a  railroad,  provided  the  sec- 
ond use  is  not  inconsistent  with  the 
first.  Little  Miami  R.  .R.  Co.  et  al. 
v.  Dayton,  23  O.  S.  510. 

But  lands  already  devoted  to  a 
public  use  cannot  be  condemned  to 
a  second  public  use  inconsistent  with 
the  first.  B.  &  O.  R.  R.  Co.  v.  Bel- 
laire,  4  B.  201;  unless  the  power 
to  do  so  is  clearly  and  expressly 
given  by  statute.  R.  R.  Co.  v.  Day- 
ton, 23  O.  S.  510;  R.  R.  Co.  v. 
Belle  Centre,  48  O.  S.  273. 

The  express  grant  of  power  to 
municipal  corporations  to  appropri- 
ate property  of  a  railroad  for  street 
purposes,  does  not  exclude  the  ap- 
propriation of  such  property  for  any 
other  purpose  permitted  under  the 
general  grant  of  powers.  R.  R.  Co. 
v.  Belle  Centre,  48  O.  S.  273. 

It  was  held  that  under  the  power 
conferred  by  former  §  2232  R.  S. 
municipal  corporations  may  appro- 
priate for  public  offices  or  a  prison, 
lands  of  a  railroad  company  not 
needed  or  used  in  the  operation  of 
its  road.     lb. 

Amount  taken. —  Though  the 
words  "  but  no  more  shall  be  taken 
or  appropriated  than  is  reasonably 
necessary  for  the  purpose  to  which 
it  is  to  be  applied "  found  in  the 
former  statute  are  not  included  in 
this  section,  it  would  seem  that  this 
limitation  is  nevertheless  implied. 
See  Giesy  v.  R.  R.  Co.,  4  O.  S.  308. 
The  discretion  to  determine  the 
quantity  of  property  required  for 
the  purpose  for  which  it  is  taken 
rests  with  the  corporation,  and  its 
determination  will  not  be  disturbed, 
in  the  absence  of  fraud  or  bad  faith. 
R.  R.  Co.  v.  Ironton,   19  O.  S.  299. 


Code  §  10]     APPROPRIATION  OF  PROPERTY. 


The  appropriation  by  a  city  of  land 
for  park  purposes  vests  in  the  city, 
not  the  fee,  but  an  easement  for  the 
purposes  intended.  Newton  v.  Man- 
ufacturers' Ry.  Co.,  14  0.  F.  D.  156. 
When  right  to  possession  ac- 
crues.—  The  right  of  a  city  to  take 
and  hold  property  for  street  pur- 
poses does  not  accrue  until  com- 
pensation has  been  assessed  by  a 
jury.  Garvin  v.  Columbus,  5  N.  P. 
236. 

Estoppel  to  question  validity  of 
proceedings. —  A  co-tenant  is  not 
estopped  to  question  the  validity  of 
appropriation  proceedings  by  the  ac- 
ceptance of  the  compensation  money 
by  his  co-tenant.  Garvin  v.  Colum- 
bus, 5  N.  P.  236. 

Collateral  attack. —  In  the  ab- 
sence of  fraud  or  prejudice,  plain- 
tills  seeking  to  enjoin  a  street  as- 
sessment cannot  complain  of  irreg- 
ularity of  previous  appropriation 
proceedings.  Hendrickson  v.  Toledo, 
3  C.  C.  (N.  S.)   355;  23  C.  C.  256. 

What  use  requires  compensa- 
tion.—  The  use  of  streets  for  sew- 
ers and  drains  does  not  require  ad- 
ditional compensation.  Cincinnati 
v.  Penny,  21  0.  S.  499. 

Construction  of  a  public  ditch 
across  a  railway  track  is  an  ap- 
propriation of  the  railway  com- 
pany's property  for  which  compen- 
sation must  be  made.  R.  R.  Co.  v. 
Commissioners,  63  O.  S.  23. 

The  water  taken  by  a  city  for  its 
own  use  and  supplied  to  its  inhabi- 
tants, is  taken  by  virtue  of  its  rights 
as  a  riparian  proprietor  and  not 
by  virtue  of  its  power  of  eminent 
domain,  and  it  need  not  pay  com- 
pensation to  lower  proprietors  for 
such  use.  Canton  v.  Shock,  66  O. 
S.  19. 

Estoppel  to  claim  compensa- 
tion.—  If    a    R.    R.    Co.    has    been 


allowed  to  occupy  a  street  on  con- 
dition that  the  city  shall  not  be  re- 
quired to  appropriate  in  order  to 
cross  the  tracks  with  other  streets, 
the  company  will  be  estopped  to 
claim  compensation.  R.  R.  Co.  v. 
Hamilton,  3  C.  C.  455. 

Who  entitled  to  compensation. 

—  Where  property,  given  for  a  spe- 
cific charitable  purpose,  with  a 
clause  of  reverter  if  used  for  other 
purposes,  is  condemned  by  a  mu- 
nicipality for  a  street,  the  compen- 
sation goes  to  the  owner  at  time 
of  condemnation  and  not  to  the 
grantor.  Babb  v.  Cincinnati,  36  B. 
206. 

Measure     of     compensation. — 

See  notes  to  §  15  of  the  Code. 

Assessment  to  pay  compensa- 
tion.—  See  notes  to  §  50  of  the 
Code. 

Property  taken  without  appro- 
priation proceedings  —  Owner's 
rights. —  When  property  has  been 
taken  by  a  municipality  and  devot- 
ed to  a  public  use,  without  being 
first  appropriated  by  regular  pro- 
ceedings, the  value  of  the  land  may 
be  recovered  by  the  owner  in  pro- 
ceedings instituted  by  him  against 
the  city.  Longworth  v.  Cincinnati, 
48  O.  S.  637. 

Must  show  title. —  Owner  suing 
municipality  for  value  of  lands  un- 
lawfully taken  must  show  good  ti- 
tle; validity  of  tax  title  considered. 
Boone  v.  Cincinnati,  13  Dec.  256. 

Estoppel  to  sue. —  The  fact  that 
owner  acquiesced  in  the  appropria- 
tion as  an  accomplished  fact  and 
ratified  it  by  tendering  a  deed  and 
offering  to  allow  judgment  that,  up- 
on value  being  fixed  plaintiff  should 
be  ordered  to  convey  to  the  cor- 
poration, does  not  estop  the  owner 
to  sue  for  compensation  or  consti- 
tute a  dedication  of  the  land  to  pub- 


84 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  10 


lie  use.  Longworth  v.  Cincinnati, 
48  O.  S.  637. 

The  fact  that  owner  bought  land 
with  knowledge  of  city's  use  of  it 
for  street  purposes  and  expenditure 
of  money  therefor  will  not  estop 
him  from  recovering  compensation 
for  unlawful  taking.  Boone  v.  Cin- 
cinnati, 13  Dec.  256.  (Aff'd  72  O. 
8.   682.) 

The  fact  that  the  owner  of  prop- 
erty, a  part  of  which  is  unlawfully 
appropriated  to  widen  a  3treet,  puts 
down  a  sidewalk  either  voluntarily 
or  by  order  of  the  city,  does  not 
show  dedication.  Webber  v.  Toledo, 
3  C.  C.  (N.  S.)  319;  23  C.  C.  237. 

Date  of  valuation. —  Value  of 
land  at  time  the  owner  begins  pro- 
ceedings, and  not  at  the  date  when 
it  was  unlawfully  taken,  governs. 
R.  R.  Co.  v.  Perkins,  22  C.  C.  630, 
aff'd  49  O.  S.  326;  Boone  v.  Cincin- 
nati, 13  Dec.  256. 

Statute  of  limitations. — Owner  su- 
ing municipality  for  compensation 
is  not  barred  until  expiration  of  six 
years  from  time  he  was  precluded 
from  enforcing  his  right  to  recover 
possession  of  land.     76. 

Appropriation  of  municipal 
property. —  See  note  under  par.  26, 
§  7  of  the  Code,  p.  62. 

Money  in  treasury. —  As  to  ne- 
cessity for  certificate  of  money  in 
treasury  before  beginning  appropri- 
ation proceedings,  see  notes  to  §  45 
of  the  Code. 

(3)  Damages  caused  by  im- 
provement —  Liability. —  See  notes 
to  §  54  of  the  Code. 

(4)  Crossing  railroad  tracks. — 
The  power  expressly  given  to  ap- 
propriate a  right  of  way  across 
railroad  tracks  for  street  purposes 
would  not  include  appropriation  of 
such  property  for  other  municipal 
uses.  R.  R.  Co.  v.  Belle  Centre,  48 
O.  S.  273.  The  compensation  would 
give  right  to  use  of  the  land  for  any 
and  all  street  purposes,  but  would 
not  include  new  servitudes,  and  for 
these  the  railroad  would  be  entitled 
to  additional  compensation.  C.  C. 
C.  &  St.  L.  Ry.  Co.  v.  U.  B.  &  N.  Ry. 


Co.,  26  C.  C.  180.  A  street  railway 
would  not  be  such  new  servitude.  lb. 

Where  street  is  extended  across 
tracks,  railroad  company  is  entitled 
to  compensation  for  cost  of  bridge  to 
carry  its  trains  over  street.  Rail- 
way Co.  v.  Troy,  68  O.  S.  510. 

Where  the  municipality  is  about 
to  file  a  petition  in  the  probate  or 
common  pleas  court  in  an  action  to 
appropriate  a  right  of  way  across  a 
railroad  track,  the  railway  company 
may,  in  a  proper  case,  enjoin  the  ap- 
propriation on  the  ground  that  it 
will  unnecessarily  interfere  with  the 
reasonable  use  of  the  property  so 
crossed,  and  the  court  may  restrain 
further  proceedings  in  the  appro- 
priation case  until  the  claim  of  the 
company  has  been  judicially  deter- 
mined. Ry.  Co.  v.  Greenville,  69  O. 
S.,  487.  Contra,  Cleveland,  etc.,  Ry. 
Co.  v.  Akron,  1  C.  C.  (N.  S.)   174. 

(5)  Railway  in  park. —  Prop- 
erty already  devoted  to  the  use  of  a 
public  park  may  be  subject  to  the 
uses  and  purposes  of  a  railway  com- 
pany. Colby  v.  Toledo,  22  C.  C.  732 ; 
aff'd  68  O.  S.  698. 

Compensation  for  market. —  As 
to  compensation  to  property  owners 
for  market  in  street,  see  Pruden  v. 
Cincinnati,  12  C.  D.  721. 

(6)  Offices  and  prisons.— The 
lands  of  a  railroad  company  may  be 
appropriated  for  public  offices,  pris- 
ons, etc.  R.  R.  Co.  v.  Belle  Centre, 
48  O.  S.  273. 

( 7 )  "See  preceding  note. 

(8)  Location  of  pest  house. — 
See  note  under  §  2169,  p.  366. 

(9)  Land  for  wharf. —  Under  a 
statute  authorizing  the  appropria- 
tion of  property  for  a  public  wharf 
the  discretion  of  determining  the 
quantity  of  ground  required  is 
vested  in  the  municipality  and 
the  courts  will  not  interfere,  if 
the  discretion  is  exercised  in  good 
faith.  Iron  R.  R.  Co.  v.  Ironton, 
19  O.  S.  299. 

Municipal  liability. — The  author- 
ity to  acquire  sites  for  levees  con- 
ferred as  here,  does  not  impose  a 
duty  on  a  municipality.     If  a  city 


Code  §§11,  12]  APPROPRIATION  OP  PROPERTY. 


85 


does  make  provision  to  protect  lands 
from  overflow,  under  such  authority, 
it  is  not  liable  on  account  of  the 
inadequacy  of  the  provisions  which 
it  sees  fit  to  make.  Hamilton  v. 
Ashbrook,  62  O.  S.  511. 

(10)  Canal  is  public  work  for 
which  appropriation  may  be  al- 
lowed. Willyard  v.  Hamilton,  7  O. 
pt.  2,  111. 

(11)  Ditches  and  drains  are 
public  uses  of  property  which  jus- 
tify condemnation.  Sessions  v. 
Crunkilton,  20  0.  S.  349. 

Compensation. —  The  construction 
of  a  public  ditch  across  or  upon  a 


railroad  right  of  way  is  an  appro- 
priation of  tne  railroad  company's 
property  which  entitles  the  company 
to  compensation.  R.  R.  Co.  v.  Com- 
missioners, 63  O.  S.  23. 

Appropriation  of  private  sewer. — 
Where  a  municipality  has  appropri- 
ated a  private  sewer  for  public  use 
either  by  depriving  the  owner  of  all 
dominion  over  it,  or  for  a  special 
purpose,  and  the  owner  tendered 
a  deed  to  the  property  wrongfully 
taken,  it  is  for  the  jury  to  determine 
the  question  of  compensation.  Mc- 
Donald v.  Cincinnati,  4  N.  P.  253. 


§  11.  [In  what  cases  property  may  be  appropriated  outside  of 
municipality;  proviso.]  In  the  appropriation  of  property  for 
any  of  the  purposes  named  in  the  preceding  section,  the  cor- 
poration may,  whenever  the  same  is  reasonably  necessary,  ac- 
quire property  outside  the  limits  of  the  corporation;  but  no 
land  shall  be  appropriated  or  obtained  for  public  cemeteries 
within  two  hundred  yards  of  any  dwelling  house  without  the 
consent,  in  writing,  of  the  owner  of  the  tract  of  land  on  which 
such  dwelling  house  may  be  situated.1 


(1)  Old  sections— The  right  to 
acquire  property  outside  the  corpo- 
ration was,  by  the  former  statutes, 
given  only  in  the  case  of  appropria- 
tion of  material  for  the  improve- 
ment of  the  streets  (§  2232,  par.  1)  ; 
for  public  parks   (par.  10)  ;  for  wa- 


terworks and  electric  light  purposes 
(par.  12)  ;  for  cemeteries  (par.  14)  ; 
for  levees  (par.  16)  ;  and  for  sewers, 
ditches  and  drains  (par.  19).  See 
note  to  §  2642  R.  S.,  under  Code 
§  28. 


§  12.  [Resolution  and  notice  of  intent  to  appropriate ;  ordi- 
nance.]1 Whenever  it  is  deemed  necessary  to  appropriate 
property,  council  shall  pass  a  resolution,  declaring  such  intent, 
defining  the  purpose  of  the  appropriation,  and  setting  forth  a 
pertinent  description  of  the  land,  and  the  estate  or  interest 
therein  desired  to  be  appropriated;  and  for  waterworks  pur- 
poses the  council  may  appropriate  such  property  as  it  may 


86 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §12 


determine  to  be  necessary ;  and  immediately  upon  the  passage  of 
such  resolution,  declaring  such  intent,  for  which  but  one  read- 
ing  shall  be  necessary,  the  mayor  shall  cause  written  notice 
thereof  to  be  given  to  the  owner,  person  in  possession  thereof, 
or  having  an  interest  of  record  in,  every  piece  of  property 
sought  to  be  appropriated,  or  to  his  authorized  agent,  and 
such  notice  shall  be  served  by  a  person  designated  for  the  pur- 
pose, and  return  made  in  the  manner  provided  by  law  for  the 
service  and  return  of  summons  in  civil  actions,  and  in  case 
said  owner,  persons,  or  their  agents,  can  not  be  found, 
notice  shall  be  given  by  publication  once  a  week  for  three 
consecutive  weeks  in  a  newspaper  of  general  circulation  in  the 
corporation,  and  council  may  thereupon  pass  an  ordinance  by 
the  votes  of  two-thirds  of  all  members  elected  thereto,  directing 
said  appropriation  to  proceed.2     [1906,  April  14,  98  v.  164.] 


(1)  Old  sections. —  This  sec- 
tion corresponds  to  §§  2234  and 
2235  R.  S.  repealed. 

(2)  Appropriations  for  street 
improvements. —  Sec.  2642  R.  S. 
which  is  re-enacted  by  the  Code  (see 
§  28  of  the  Code),  provides  specially 
for  appropriations  of  property  for 
opening,  widening,  etc.,  of  streets, 
and  requires  that  "  council  shall 
provide  by  ordinance  for  the  same." 

Former  §  2235  to  which  the  pres- 
ent section  corresponds,  and  relat- 
ing, as  the  present  section  does,  to 
appropriations  for  all  purposes,  pro- 
vided merely  for  a  resolution  de- 
claring intent  to  appropriate,  but 
did  not  provide  for  an  ordinance  to 
appropriate.  Cases  under  the  for- 
mer §  2235  R.  S.  held  that  in  case 
of  opening,  widening,  etc.,  of  streets, 
the  special  provisions  of  §  2642  R.  S. 
requiring  an  ordinance  to  appro- 
priate but  not  the  preliminary  reso- 
lution, would  govern  and  that  the 
preliminary  resolution  provided  for 
in  §  2234  R.  S.  was  not  necessary 


when  the  appropriation  concerned 
street  improvements.  See  Krum- 
berg  v.  Cincinnati,  29  O.  S.  69 
Tyler  v.  Columbus,  6  C.  C.  224 
Caldwell  v.  Carthage,  49  0.  S.  334 
Cincinnati  v.  Mathers,  6  Dec.  (Re.) 
755;  Toledo  v.  Bayer,  7  N.  P.  324. 
In  Toledo  v.  Bayer,  supra,  the 
court  noted  the  variance  between 
§§  2234  R.  S.,  2235  R.  S.  and  2642 
R.  S.,  and  applied  the  rule  that 
"  where  there  is  a  general  provision 
in  regard  to  the  method  of  proced- 
ure regarding  several  subjects  fol- 
lowed by  a  special  provision  as  to 
the  procedure  in  regard  to  one  or 
more  of  the  subjects,  the  special 
provision  will  govern.,,  It  will  be 
noticed  that  in  the  above  §  12,  both 
the  preliminary  resolution  and  the 
ordinance  to  appropriate  are  re- 
quired. In  view  of  this,  the  safe 
course,  in  the  case  of  appropriations 
for  opening,  etc.,  of  streets,  would 
be  to  have  both  the  resolution  and 
the  ordinance,  the  ordinance  being 
passed  by  a  two-thirds  vote  and  de- 


Code  §  12] 


APPROPRIATION   OF   PROPERTY 


87 


scribing  the  property  as  required 
by  §2642  R.  8. 

The  preliminary  resolution,  pro- 
vided for  in  §  12,  was  held  necessary 
in  Erie  Railway  Co.  v.  Youngstown, 
26  C.  C.  679;  5  C.  C.  (N.  S.)  332. 

§  2642  R.  S.  does  not  provide  all 
that  must  be  done  to  appropriate 
property  for  the  purpose  therein 
specified.  The  appropriation  pro- 
ceedings must  be  had  as  provided 
in  the  general  laws  relating  to  the 
appropriation  of  property  generally. 
Garvin  v.  Columbus,  5  N.  P.  236. 

Sufficiency    of    notice. — As    to 

the  sufficiency  of  notice  to  inform 
property  owners  of  city's  intent  to 
appropriate  an  easement,  see  Fen- 
ner  y.  Cincinnati,  4  N*  P.  182.  Fail- 
ure to  file  claim  for  damages  under 
insufficient  notice  not  a  forfeiture 
of  right  to  recover.    lb. 

Mortgagees  need  not  be  notified 
of  intention  to  appropriate.  No- 
tice to  legal  owners  is  sufficient. 
Put-in-Bay  v.  Stimmel,  18  C.  C.  644. 


Effect  of  appropriation  ordi= 
nance. — The  passage  of  the  appro- 
priation ordinance  appropriates  the 
property,  and  improvements  made 
thereon  after  that  date  are  at  the 
owner's  risk.  Toledo  v.  Bayer,  7 
N.  P.  324.  But  see  Stribley  v.  Cin- 
cinnati, 9  C.  C.  122,  where  it  is  held 
that  the  value  of  the  property  is  to 
be  determined  as  of  the  time  of  trial 
and  not  as  of  the  time  of  the  pas- 
sage of  the  ordinance;  but  it  is  said 
"that  to  some  extent  the  passage  of 
the  ordinance  may  affect  the  prop- 
erty owner.  He  would  not  be  al- 
lowed compensation,  probably,  if 
with  notice  of  intent  of  city  to  im- 
prove, he  unreasonably  and  in  haste 
put  improvements  on  the  property." 

Passage  of  the  ordinance  places 
the  municipality  in  as  advanced  a 
state  as  private  corporation  after 
court  has  determined  the  prelimi- 
nary questions.  Toledo  v.  Bayer,  7 
N.  P.  324.  Ky.  Co.  v.  Greenville,  69 
O.   B.  487. 


ORDER  OF  PROCEDURE  IN  APPROPRIATION  OF  PROPERTY. 


(1)  Resolution  declaring  intent,  defining  purpose  and  describing  prop- 
erty to  be  appropriated,  for  which  but  one  reading  is  necessary. 

(2)  Notice  to  the  owners,  served,  or  published  once  a  week  for  five  con- 
secutive weeks  in  case  such  owners  or  their  agents  cannot  be  found. 

(3)  Ordinance  to  appropriate,  and  directing  the  solicitor  to  apply  to  the 
proper  court  to  assess  compensation;  to  be  passed  by  a  two-thirds  vote  of 
council. 

(4)  Application  to  assess  compensation. 

(5)  Notice  of  application  and  time  and  place  of  the  same,  served  as 
other  legal  process,  or,  if  service  cannot  be  had,  then  by  publication  once  a 
week  for  three  weeks. 

(6)  Time  set  for  trial  by  jury  to  assess  compensation. 

(7)  Jury  summoned,  trial,  verdict  and  judgment  entry. 


8*  THE    OHIO    MUNICIPAL    CODE.  [Code    §    13 

FORM  OF  RESOLUTION  DECLARING  INTENTION  TO  APPROPRIATE. 


Resolution  No. 


Declaring  intention  to  appropriate  property  for 

purposes. 

Be  it  resolved  by  the  council  of  the  city  [or  village]  of 

State  of  Ohio : 

That  it  hereby  declares  its  intention  to  appropriate  for   (street  or  park, 

etc.)  purposes,  for  (opening street,  or  establishing  a  park 

ftt etc. )   the  following  described  property, 

to- wit:    (here  describe  property  to  be  appropriated.) 

Passed 19 


Attest:  President  of  Council. 

Clerk. 

FORM   OF   ORDINANCE    TO    APPROPRIATE. 
Ordinance  No 

To  appropriate  property  for purposes. 

Be  it  ordained  by  the  council  of  the  city  [or  village]  of 

State  of  Ohio,  two-thirds  of  all  members  elected  thereto  concurring, 

Sec.  1.  That  the  following  described  property  be  and  the  same  is  hereby 
appropriated  to  public  use  for purposes  for  (open- 
ing  street,  or  other  purpose)    to- wit : 

(Here  give  description  of  property  appropriated.) 

Sec.  2.  That  the  solicitor  be  and  is  hereby  authorized  and  directed 
to  apply  to  a  court  of  competent  jurisdiction  to  have  a  jury  impaneled 
to  make  inquiry  into  and  assess  the  compensation  to  be  paid  for  such 
property. 

Sec.  3.     That  the  costs  and  expenses  of  said  appropriation  be  paid  out 

of fund.      (If  bonds  are  to  be  issued,  see   §   100  et  seq.  of 

the  Code. 

Sec.  4.  That  this  ordinance  shall  take  effect  and  be  in  force  from  and 
after  the  earliest  period  allowed  by  law. 

Passed 19 


Attest:  President  of  Council. 

Clerk. 

§  13.  [Application  to  court,  etc.]  Upon  the  passage  of  the 
aforesaid  ordinance,  the  solicitor  shall  make  application  to 
the  court  of  common  pleas  or  to  a  judge  in  vacation,  to  the  pro- 
bate court,  or  to  the  insolvency  court,  in  the  county  in  which 
the  land  sought  to  be  taken  is  located,  which  application  shall 
describe  as  correctly  as  possible  the  land  to  be  appropriated, 


Code  §  13] 


APPROPRIATION   OF   PROPERTY 


89 


the  interest  or  estate  therein  to  be  taken,  the  object  proposed,2 
and  the  name  of  the  owner  of  each  lot  or  parcel  thereof.  [1906, 
April  14,  98  v.  164.] 


(1)  Old  section,  2236  R.  S.,  re- 
pealed. See  §  4686-27  R.  S.,  which 
provides  that  §  2236  et  seq.  shall 
apply  to  townships. 

(2)  Sufficiency  of  description. 
See  R.  R.  Co.  v.  Prentice,  13  O.  S. 

373.  A  petition  in  appropriation 
should  state  the  purpose  sufficiently 
to  show  a  public  use  and  that  the 
power  is  conferred  by  statute.  Ry. 
Co.  v.  Bohm,  34  O.  S.  114. 

Boundary  lines. —  The  determina- 
tion of  the  extent  of  boundary  lines 

FORM  OF  APPLICATION  TO 


of  property  taken  in  condemnation 
proceedings  is  final  between  the  mu- 
nicipality and  the  owner,  and  can- 
not be  relitigated  in  another  action 
between  the  same  parties.  Cincin- 
nati v.  'Hosea,  19  C.  C.  744;  (aff'd 
without  report,  66  O.  S.  687). 

Amendment  to  application. — 
Council  cannot,  while  condemnation 
case  is  being  tried,  change  by  ordi- 
nance the  terms  of  its  application 
and  ask  for  more  property.  Grant 
v.  Hyde  Park,  67  O.  S.  166. 

ASSESS  COMPENSATION. 


The  city  [or  village]  of 


Court County,   Ohio. 


Plaintiff, 


Application    to    assess    com- 
pensation. 


(Insert  names  of  all  persons  owning 
or  claiming  any  interest  in  the  property 
appropriated.) 

Defendants. 

Now  comes  the  city  [or  village]  of ,  State  of  Ohio,  and 

represents  that  it  is  a  city  [or  village]  under  the  laws  of  Ohio,  and  that  its 

Council    by    resolution    duly    passed  on  the day  of 19 ... . 

did  declare  its  intention  to  appropriate  the  property  hereinafter  described, 

to  public  use,  for  [street,  or  park,  etc.']  purposes  for  [widening 

street,  or  for  other  purpose etc.]  of  which  resolution  due 

notice  was  given  according  to  law,  and  by  ordinance  duly  passed  on  the 

day   of 19 ,   two-thirds   of   all   the 

members  elected  to  council  concurring  therein,  did  direct  the  appropriation 
of  said  property  to  proceed ; 

That  the  several  parties  made  defendants  herein  own  or  claim  to  own  or 
have  some  title  or  interest  in  said  property  as  the  same  is  divided  into  lots 
or  parcels  and  designated  and  shown  on  the  plat  filed  herewith  and  made 
part  hereof,  and  that  the  descriptions  of  said  several  lots  or  parcels  and 
the  names  of  the  parties  who  own  or  claim  to  own  or  have  an  interest  in 
the  same,  are  as  follows:  (here  insert  separate  description  of  each  piece 
of  property  to  be  appropriated,  giving  name  of  the  owner  or  person  claim- 
ing an  interest  and  state  the  interest  claimed.) 

Wherefore,  plaintiff  asks  the  court  to  cause  a  jury  to  be  impaneled  to 
make  inquiry  into  and  assess  the  compensation  to  be  paid  by  the  plaintiff 
for  the  property  appropriated  as  above  set  forth,  and  that  upon  the  pay- 


90  THE    OHIO    MUNICIPAL    CODE.  [Code    §    14 

ment  to  the  owners  or  deposit  of  the  amount  so  assessed,  as  the  court  shall 
order,  possession  of  said  property  may  be  awarded  it  according  to  law. 


City  [or  village]  Solicitor. 

PRECIPE. 
To  the  Clerk: 

Issue  notice  to  the  defendants   named  in  the  above  application,  that  the 

plaintiff  will,  on  the day  of ,  19 .... ,  at M... 

apply  to  the  Honorable ,  Judge  of  the 

Court,  of County,  for  the  impaneling  of  a  jury  to  make  in- 
quiry into  and  assess  the  compensation  to  be  paid  by  the  city  [or  village] 

of to   the   owners   for   the   following    property,, 

to-wit:     (Here   insert    description   of   the   entire   piece   of   property   to   be 
appropriated. ) 


City  [or  village]  Solicitor. 


§  14.  [Service  of  notice  to  owners  of  property.]1  Notice  of 
the  time  and  place  of  such  application  shall  be  given  in  the  ordi- 
nary manner  of  serving  legal  process,2  to  all  owners  3  or  agents 
of  owners  resident  in  the  state,  whose  place  of  residence  is 
known,  and  to  all  others  by  publishing  the  substance  of  the 
application,  with  a  statement  of  the  time  and  place  at  which  it  is 
to  be  made,  once  a  week  for  three  weeks  4  next  preceding  the 
time  of  the  application  in  some  newspaper  of  general  circulation 
in  the  county. 

( 1 )  Old  section. —  This  section  him  he  may  sue  the  corporation  and 
corresponds  to  §  2237  R.  S.  repealed.  recover  damages.     lb.     And,  gener- 

( 2 )  Service  of  notice. —  Service  ally,  it  would  seem  that  all  persons 
at  residence  within  the  jurisdiction  having  an  interest  would  come  with- 
is  good.  Trustees  v.  O'Meara,  2  B.  in  the  word  "  owners  "  in  the  stat- 
142.  See  generally  R.  R.  Co.  v.  ute.  76.  And  see  Big  Four,  etc., 
Belle  Centre,  48  O.  S.  273,  290.  Co.  v.  Cincinnati,  12  Dec.  218. 

In  case  of  death  of  owner  or  per-  (4)    Publication  for  three  weeks 

ion  having  an  interest,  pending  pro-  is  satisfied  by  an  insertion  once  each 

ceedings,  revivor  must  be  had  in  the  week  for  three  weeks.    Early  v.  Doe, 

name  of  the  heirs,  and  not  admin-  16  How.    (U.   S.)    610.      But  three 

istrators.    R.  R.  Co.  v.  Bohm,  29  O.  full  weeks   should   elapse  after  the 

S.  633.  first  publication  before  the  hearing 

(3)  Mortgagee  whose  mortgagt  is  had.  Miller  v.  Pearce,  2  C.  S.  C. 
is  recorded  must  be  notified.  Har-  R.  44,  50.  But  see  Cincinnati  v. 
rison  v.  Sabina,  1  C.  C.  49.  And  if  Fenner,  8  N.  P.  342  (reversed  on 
property  is  taken  without  notice  to  other  grounds,  65  O.  S.  567). 


Code    §     15]  APPROPRIATION    OF    PROPERTY.  91 

FORM  OF  NOTICE  BY  PUBLICATION. 

LEGAL  NOTICE. 

( naming   persons   to   be 

notified  by  publication)  are  hereby  notified  that  an  application  in  writing 
substantially  as  herein  set  forth  will  be  made  by  the  city   [or  village]   of 

to  the  Hon ,  Judge  of  the 

Court  of County,  Ohio,  on  the day  of 

at o'clock . .  .  .M.,  to  impanel  a  jury  to  assess 

the  compensation  to  be  paid  by  said  city  [or  village]  to  the  owners  of  the 
following  described  real  estate:  (Describe  entire  tract,  and  lots  into 
which  it  is  divided,  giving  the  names  of  the  owners),  said  property  having 
been  condemned  and  appropriated  to  public  use  for  the  purpose  (state  the 
purpose  of  appropriation ) ,  by  a  resolution  declaring  the  intention  to  appro- 
priate duly  passed  by  the  council  of  said  city  [or  village]  on  the 

day  of ,  19. .  . .,  and  an  ordinance  directing  the  appropria- 
tion to  proceed,  duly  passed  by  said  council  on  the day 

of ,    19....,    and   the   plaintiff   asks    that   upon    payment 

to  the  owners  or  deposit  of  the  amount  of  compensation  assessed,  as  the 
Court  shall  order,  possession  of  said  property  may  be  awarded  it  according 
to  law. 


City  [or  village]   Solicitor. 

§  15.  [Court  to  fix  time  for  inquiry,  etc.]1  If  it  appear 
that  such  notice  has  been  served  five  days  before  the  time  of 
application,  or  has  been  duly  published,  or  that  such  notice 
has  been  waived,  the  court  shall  set  a  time  for  the  assessment 
of  compensation  by  a  jury;2  provided,  that  the  same  may  be 
made  at  a  special  term  of  court,  and  the  jury  shall  be  drawn 
and  the  trial  proceed  as  in  other  civil  actions.3 

(1)  Old   sections. —  This  section  Scope  of   preliminary    hearing. 

corresponds    to    §§    2238,    2239    and  — There  is  no  authority  for  filing  an 

2240  R.  S.  repealed.  answer  to  the  application  to  assess 

(2)  Waiver  of  jury  is  not  a  compensation.  Ry.  Co.  v.  Greenville, 
fatal  irregularity  and  cannot  be  6^  O.  S.  487.  So  a  railway  company 
taken  advantage  of  collaterally.  was  held  not  to  have  the  right  to 
Hendrickson  v.  Toledo,  23  C.  C.  file  an  answer  setting  up  that  a 
256;  3  C.  C.  (N.  S.)  355.  See  also  crossing  of  its  property  by  a  street 
Colby  v.  Toledo,  22  C.  C.  732,  (aff'd  would  unnecessarily  interfere  with 
68  O    S   698)  railway    uses.     lb.     Whether    court 

(3)  Proceedings.  -  Appropria-  J?*?  *""£  }f*ye  to  nlean  answer  to 
tion  proceedings  by  municipal  corpo-  £e '  ^P11™^  £*  *'  £  Cn°-  V' 
rations  are  now  made  to  conform  *Jyde  Park  4  N.  P.  296; .  Ry.  Co  v. 
to  proceedings  in  "other  civil  ac-  Greenville  69  O.  S  487,  497.  When 
tions,"  except  where  governed  by  *he  resolutJ°n  and  or^™™e  have 
the  special  provisions  in  §§  12  to  b?en  Passed  \nd  recorded  the  mu- 
22  inclusive  of  the  Code.  n^clPal  Powe.r  +has  been  exercised  and 

_  __  ...  the  appropriation  made,  and  further 
Continuances— No  provision  is  proceedings  are  for  compensation  to 
made  for  continuing  the  time  of  the  owner  whose  pr0perty  has  been 
hearing  as  was  provided  in  §  2241  appropriated.  Ry.  v.  Greenville,  69 
R.  S.  repealed,  but  this  would  be  0.  S.  487,  493.  The  court  only  de- 
covered  by  the  general  provision  termines  in  the  preliminarv  hearing 
that  the  trial  shall  proceed  as  in  that  notice  has  been  duly  served.  76. ; 
other  civil  actions.  (contra,  Toledo  R.  R.  Co.  v.  Toledo, 

7  N.  P.  285)  ;   and  cannot  consider 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  15 


the  question  whether  the  proper  pre- 
liminary resolution  has  been  duly 
passed  by  council.  Erie  Railway 
Co.  v.  Youngstown,  26  C.  C.  679; 
5  C.  C.   (N.  8.)   332. 

The  proper  remedy,  where  prelim- 
inary requisites  have  not  been  com- 
plied with  by  the  municipality,  is  an 
action  to  enjoin  the  municipality 
from  continuing  with  the  condemna- 
tion proceeding.  Erie  Railway  Co. 
v.  Youngstown,  26  C.  C.  b79;  5  C.  C. 
(N.  S.)  332;  Ry.  Co.  v.  Greenville, 
69   O.   S.   487. 

Separate  trials. — Under  former 
statutes  it  was  held  that  property 
owners  were  not  entitled  to  sepa- 
rate trials  and  there  could  be  but 
two  peremptory  challenges  on  each 
side  of  the  case.  Cincinnati  v.  Neff 
et  al.,  19  B.  404.  But  as  to  number 
of  peremptory  challenges  see  the  act 
of  April  29,  1902   (95  v.  308). 

Compensation — for  what  made. 
— Where  the  city  appropriates  an 
easement  on  property  for  a  sloping 
fill  in  connection  with  street  con- 
struction, compensation  must  be 
made  for  the  damages  resulting 
from  taking  the  easement,  but  the 
fee  in  the  land  need  not  be  paid  for. 
Dodson  v.  Cincinnati,  34  O.  S.  276. 

Compensation  must  be  allowed 
for  diversion  of  a  watercourse,  made 
necessary  by  the  appropriation  of 
property.  Hueston  v.  R.  R.  Co.,  4 
O.  8.  685. 

Railroad  company  is  entitled  to 
compensation  for  cost  of  bridge  over 
street,  when  its  property  is  appro- 
priated to  extend  a  street  under  its 
tracks.  Ry.  Co.  v.  Troy,  68  O.  S. 
510. 

If  fair  and  reasonable  rent  of 
property  appropriated  exceeds 
amount  fixed  in  terms  of  lease,  the 
lessee  may  be  compensated  for  the 
difference.  Cincinnati  v.  Neff,  20 
B.   8. 

The  lessee  of  property  appropri- 
ated for  a  street  is  still  liable  for 
the  rent  and  he  must  be  compensat- 
ed.    Foote  v.  Cincinnati,  11  O.  408. 

If  a  tract  is  platted  into  lots  and 
the  plat  recorded,  the  corporation  is 
not  liable  to  pay  damages  to  lots 
not  taken  as  "damages  to  the  resi- 
due." Banning  v.  Trustee  South- 
ern Ry.,  3  B.  965. 

A  lessee's  damages  for  improve- 
ments made  by  him  under  a  parol 
lease   for  three  years  destroyed  by 


opening  a  street,  must  come  from 
the  lessor  and  not  from  the  city. 
Clark  v.  Cincinnati,  1  Dec.  (Re.) 
10. 

Riparian  rights  are  property 
which  must  be  paid  for  and  city 
injuring  natural  watercourse  by  the 
emptying  of  sewage  must  make  com- 
pensation to  riparian  owner.  Mans- 
field v.  Balliett,  65  O.  S.  451. 

As  to  case  of  lease  expiring  before 
payment  of  the  award,  see  Cleveland 
v.  Cuyahoga,  etc.,  41  O.  S.  600. 

The  value  of  the  property  at  the 
time  of  trial,  and  not  at  the  date  of 
the  condemnation  ordinance  is  to 
be  given.  Stribley  v.  Cincinnati,  9 
C.  C.  122.  But  see  Toledo  v.  Bayer, 
7  N.  P.  324. 

What    compensation    includes. 

—  The  appropriation  of  property  for 
street  purposes  embraces  not  only 
an  ascertainment  of  compensation  to 
the  owner  for  land  taken,  but  dam- 
ages to  the  residue  of  his  abutting 
property,  and  where  a  municipality 
in  its  application  makes  general  de- 
mand for  an  appropriation  for 
street  purposes,  the  effect  of  a  judg- 
ment in  such  case  is  to  give  the 
municipality  the  right  to  use  the 
land  for  all  street  purposes  includ- 
ing the  right  to  establish  a  reason- 
able and  proper  grade,  and  any  dam- 
ages that  may  arise  from  such 
change  of  grade  are  included  in 
said  appropriation  proceedings. 
Grant  v.  Village  of  Hyde  Park,  47 
B.  831  (67  O.  S.  166)  ;  Tenney  et 
al.  v.  Cincinnati,  47  B.  832;  24  C.  C. 
237;    (67  O.  S.  518). 

Measure     of     compensation. — 

The  elements  of  compensation  are, 
( 1 )  the  abstract  value  of  the  land 
taken,  (2)  the  value  arising  from 
the  relative  situation  of  the  land, 
taken  in  connection  with  the  residue 
of  the  owner's  land  from  which  it  is 
severed,    and,    (3)    the   effect    upon 


Code  §  15]      APPROPRIATION  OF  PROPERTY. 


93 


the  value  of  the  residue  of  the  own- 
er's land  arising  from  the  uses  to 
which  the  part  taken  is  appropriat- 
ed. R.  R.  Co.  v.  Ball,  5  O.  S.  568; 
Lorain  St.  Ry.  Co.  v.  Sinning,  17  C. 
C.  649. 

As  to  the  measure  of  compensa- 
tion when  land  devoted  to  a  public 
use  is  transferred  to  another  public 
use,  see  Hatch  v.  R.  R.  Co.,  18  O.  S. 
92;  Goodin  v.  Canal  Co.,  18  O.  S. 
169;  R.  R.  Co.  v.  Zinn,  18  O.  S. 
417. 

Fair  market  value  of  the  land  at 
time  of  taking  must  be  paid  the 
owner  and  jury  cannot  consider,  or 
make  use  of  the  fact  that  it  has  been 
increased  in  value  by  the  proposed 
construction  of  the  improvement. 
Giesy  v.  R.  R.  Co.,  4  O.  S.  308.  But 
as  to  increase  in  value  by  proposed 
erection  of  a  city  hall  for  which 
property  was  appropriated,  see  Cin- 
cinnati v.  Neff,  20  B.  8. 

Fair  market  value  of  property  ap- 
propriated is  that  amount  which  the 
owner  may  reasonably  expect  to  sell 
for  at  time  of  condemnation  and  at 
a  voluntary,  not  a  forced,  sale.  Ry. 
Co.  v.  Knauss,  47  B.  807. 

Damages  to  residue  must  be  ac- 
tual and  not  theoretical  or  specula- 
tive,    lb. 

Compensation  for  toll  house  when 
turnpike  is  brought  within  city  lim- 
its, see  Turnpike  Co.  v.  Cincinnati, 
6  N.  P.  233. 

Value  of  leasehold  taken,  how 
measured,  see  Cincinnati  v.  Evers- 
man,  4  O.  L.  R.  140;  Cincinnati  v. 
Neff,  20  B.  8. 

Evidence  —  Burden.  —  The  bur- 
den to  establish  value  is  on  the 
owners.    Cincinnati  v.  Neff,  20  B.  8. 

Special  benefits. — Special  benefits 
connected  with  the  appropriation  of 
the.  specific  land  may  be  taken  into 
consideration  in  estimating  compen- 
sation. Ry.  Co.  v.  Williams,  9  B. 
253;  R.  R.  Co.  v.  Ball,  5  O.  S.  5G8. 
But  whether  special  benefits  not  con- 
nected with  the  locality  or  subject 
matter  may  be  considered  quere  R. 


R.  Co.  v.  Ball,  5  O.  S.  568;  and  see 
R.  R.  Co.  v.  Collett,  6  O.  S.  182, 
and  Ry.  Co.  v.  Longworth,  30  O.  S. 
108,  112. 

General  and  special  benefits  de- 
fined. R.  H.  Co.  v.  Collett,  6  O.  S. 
182;  Schaible  v.  Ry.,  10  C.  C.  334. 

Rental. —  Rental  may  be  proved 
as  tending  to  show  value,  of  the 
premises.  Cincinnati  v.  Neff,  20  B. 
8. 

Special  adaptability  of  the  land  to 
the  purposes  of  the  condemning  cor- 
poration cannot  be  considered.  Gib- 
son v.  Norwalk,  13  C.  C.  428. 

Speculative  value  cannot  be  con- 
sidered. Value  cannot  be  enhanced 
by  evidence  of  a  contingent  charac- 
ter such  as  probable  rents  depend- 
ent on  will  of  others  who  may  re- 
quire the  land  as  a  roadway.  Pow- 
ers v.  Railway,  33  O.  S.  429. 

But  loss  of  trade  or  business  or 
diminished  rental  may  be  shown. 
Railway  v.  Railway,  30  O.  S.  604, 
623;  Railway  v.  Gardner,  45  O.  S. 
309. 

Improvements  injured. —  The  cost 
of  tile  draining  injured  by  the 
appropriation,  cannot  be  shown. 
Schaible  v.  Ry.,  10  C.  C.  334,  338; 
but  if  there  is  no  market  value  for 
improvements  on  the  land  taken  and 
no  value  established  under  any  rule, 
their  cost  may  be  shown  as  an  ele- 
ment of  value.  Foote  v.  R.  R.  Co., 
21  C.  C.  319. 

Opinion. —  Witness  cannot  give 
his  opinion  as  to  the  amount  of 
damages  land  owner  will  sustain  by 
the  appropriation;  but  he  may  give 
his  opinion  as  to  the  value  of  all  the 
land  before  and  after  the  appro- 
priation of  a  part.  R.  R.  Co.  v. 
Campbell,  4  O.  S.  583;  R.  R.  Co.  v. 
Ball,  5  O.  S.  568 ;  R.  R.  Co.  v.  Gard- 
ner, 45  O.  S.  309.  But  see  Miller 
v.  Weber,  1  C.  C.  130. 
.     Opinions  of  value  based  on  sales 


94 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    15 


but  not  actual  sales  may  be  put  in 
evidence.  Neither  forced  sales  nor 
forced  purchases  give  the  standard. 
Ry.  Co.  v.  Garrard,  7  B.  272;  Cin- 
cinnati v.  Neff,  20  B.  8. 

Platted  land. —  The  owner  may 
show  that  the  land  has  been  platted 
for  future  subdivision  as  a  matter 
affecting  its  value.  Ry.  Co.  v.  Long- 
worth,  30  O.  S.  108.  An  unrecorded 
map  is  admissible  for  this  purpose. 
R.  R.  Co.  v.  Perkins,  22  C.  C.  630. 

It  is  not  error  to  permit  the  in- 
troduction of  a  plat  to  show  the 
quantity  of  land  in  each  of  the  par- 
cels appropriated  if  the  engineer 
who  drew  it,  testifies  to  its  correct- 
ness. Neff  v.  Cincinnati,  32  O.  S. 
215. 

The  fact  that  lands  have  been 
platted  and  laid  out  in  building  lots 
may  be  considered  in  determining 
their  value.  Ry.  Co.  v.  Knauss,  47 
B.  807. 

Verdict  must  show  separately 
compensation    for    land    taken    and 


js    to    residue.      Ry.    Co.    v. 
Knauss,  47  B.  807. 

Where  in  a  condemnation  suit  tes- 
timony is  received  tending  to  estab- 
lish a  number  of  different  methods 
of  grading  a  street  and  bearing  upon 
the  probable  grade  which  the  muni- 
cipality may  in  the  future  adopt, 
and  the  jury  has  found  substantial 
damages  to  the  residue  of  the  lands 
and  return  the  same  in  a  general 
verdict,  and  has  at  the  same  time 
returned  a  special  verdict  to  the  ef- 
fect that  damages  are  allowed  on 
account  only  of  future  grade  which 
might  be  established,  and  that  if  the 
street  should  be  improved  on  a  grade 
which  would  not  necessitate  a  cer- 
tain cut  there  would  be  no  damage, 
it  is  error  to  disregard  the  general 
verdict  and  to  hold  that  the  same 
is  controlled  by  the  special  verdict, 
and  upon  that  ground  set  aside  the 
amount  found  in  the  general  verdict 
as  damages  to  the  residue.  Grant 
v.  Hyde  Park,  47  B.  831;  (67  O.  S. 
166). 


FORM   OF   ENTRY. 


State  of  Ohio,    County, 

The  city  [or  village]  of 


.  Court. 


Plaintiff, 


et  al. 

Defendants. 


Entry. 


This  cause  coming  on  to  be  heard  upon  the  application  of  the  city  [or 

village]    of to  impanel  a  jury  to  assess  the 

compensation  to  be  paid  the  owners  of  the  property  described  in  said  appli- 
cation and  the  court  finding  that  all  the  resident  defendants  have  been  duly 
served  with  notice  of  the  pendency  of  the  application  in  the  ordinary  man- 
ner of  serving  legal  process  at  least  five  days  prior  to  this  application  and 
that  all  non-resident  defendants  have  been  served  with  notice  by  the  publi- 
cation of  the  substance  of  the  application  in  the ,  a  news- 
paper of  general  circulation  in  the  county,  once  a  week  for  three  consecu- 
tive weeks  from  and  after  the day  of 19 ,  and  that 

all  the  proceedings  are  regular  and  valid,  does  hereby  order  that  a  jury  be 


Code  §  16]     APPROPRIATION  OF  PROPERTY.  95 

impaneled  on  the day  of 19 ,    at o'clock 

. . . .  M.  for  the  purpose  of  assessing  the  compensation  to  be  paid  for  said 
property. 

§  16.  [View  of  premises;  guardian  ad  litem;  how  jury  to  re- 
turn assessment;  open  and  close  of  case.]1  A  view  of  the  prem- 
ises shall  be  ordered  when  desired  by  the  jury  or  demanded  by 
any  party  to  the  proceedings.2 

If,  at  the  time  of  the  application,  it  appear  that  any  of  the 
owners  of  the  property  sought  to  be  taken  are  infants  or  insane, 
and  that  they  have  no  guardian,  a  guardian  ad  litem  shall  be 
appointed  in  their  behalf ;  and  no  delay  in  the  proceedings  shall 
be  occasioned  by  doubt  as  to  the  ownership  of  any  property,  or 
as  to  the  interests  of  the  respective  owners,  but  in  such  cases  the 
court  shall  require  a  deposit  of  the  money  allowed  as  compensa- 
tion for  the  whole  property  or  the  part  in  dispute;  and  in  all 
cases,  as  soon  as  the  corporation  shall  have  paid  the  compen- 
sation assessed,  or  secured  its  payment  by  a  deposit  of  money 
under  the  order  of  the  court,  possession  of  the  property  may 
be  taken. 

The  assessment  shall  be  in  writing,  signed  by  the  jury,  and 
shall  be  so  made  that  the  amount  payable  to  the  owners  of  each 
lot  or  parcel  of  land  may  be  ascertained.3  The  owners  shall  have 
the  right  to  open  and  close  the  case.4  When  a  building  or  other 
structure  is  situated  partly  upon  the  land  to  be  appropriated, 
and  partly  upon  adjoining  land,  and  such  structure  cannot  be 
divided  upon  the  line  between  such  lands,  without  manifest  in- 
jury, the  jury  in  assessing  compensation  to  any  owner  of  the 
land,  shall  assess  the  value  of  the  same,  exclusive  of  the  struc- 
ture, andcnake  a  separate  estimate  of  the  value  of  the  structure ; 
the  owner  of  the  structure  may  elect  to  retain  the  same  and 
remove  it,  or  to  accept  the  value  thereof  as  estimated  by  the 
jury;  if  he  fail  to  make  such  election,  within  ten  days  from 
the  final  determination  of  the  cause,,  he  shall  be  deemed  to 


96  THE    OHIO    MUNICIPAL    CODE.  [Code    §    17 

Lave  elected  to  accept  the  value  of  the  structure,  as  fixed  by 
the  jury. 

(1)  Old  sections. —  This  section  property.  Ry.  Co.  v.  Knauss,  47  H. 
corresponds  to  §§  2242,  2243,  2245,       807. 

2250  R.  S.  repealed.  (3)   Conclusiveness    of    award. 

(2)  View  of  the  premises  is  — City  estopped  after  lapse  of  years 
solely  to  enable  the  jury  to  apply  to  deny  title  in  person  designated  in 
the  testimony.  It  cannot  be  consid-  its  application  as  owner  and  to 
ered  by  the  jury  as  evidence.  Co-  whom  award  of  compensation  was 
lumbus  v.  Bidlingmeier,  7  C.  C.  136;  made.  Toledo  v.  Weber,  23  C.  C. 
Besuden  v.  Commissioners,  7  C.  C.  564. 

237.  (4)   Open  and  close. —  Where  no 

Purpose  of  view  of  premises  is  to  provision  was  made  as  to  the  open 
enable  jury  to  better  understand  and  and  close  of  the  case,  it  was  held 
apply  the  evidence  and  not  to  ascer-  not  error  to  permit  city  to  open 
tain  for  themselves  the  value  of  the       and  close.  Neff  v.  Cincinnati,  32  O. 

S.  215. 


§17.  [Verdict  in  whole  or  in  part.]1  The  jury  shall  be 
sworn  to  make  the  whole  inquiry  and  assessment,  but  may  re- 
turn a  verdict  as  to  part  and  be  discharged  as  to  the  rest,  in 
the  discretion  of  the  court;  and  in  case  a  jury  is  discharged 
from  rendering  a  verdict  in  whole  or  in  part,  another  shall  be 
drawn  and  impaneled  at  the  earliest  convenient  time,  who  shall 
make  the  whole  inquiry  and  assessment,  or  the  part  not  made. 

(1)  Old  section. — This  section 
.corresponds  to  §  2246  R.  S.  ( re- 
pealed). 

FORM  OF  OATH  TO  JURY. 

You,  and  each  of  you,  do  solemnly  swear  that  you  will  justly  and  im- 
partially inquire  into  and  assess,  according  to  your  best  judgment,  the 
amount  of  compensation  due  the  proper  owners  in  the  cases  which  will  be 
brought  before  you  in  this  proceeding,  by  reason  of  the  appropriation  of 
their  property,  described  in  the  application,  to  the  public  use  by  the  plaint- 
iff corporation,  the  city  [or  village]  of in  the  pro- 
ceeding now  pending  irrespective  of  any  benefit  from  any  improvement  pro- 
posed by  such  corporation ;  and  you  do  further  swear,  that  you  will,  in 
assessing  any  damages  that  may  occur  to  such  property  owners,  by  reason 
of  the  appropriation  other  than  the  compensation,  further  ascertain  how 
much  less  valuable  the  remaining  portion  of  said  property  will  be  in  con- 
sequence of  said  appropriation;  this  you  swear  as  you  shall  answer  to  God. 

FORM   OF  VERDICT. 

We,  the  jurors,  in  this  case,  duly  impaneled  and  sworn,  do  assess  as  the 

compensation  to  be  paid  by  the  city  [or  village]  of to  the 

owner  or  owners  of  the  several  lots  and  parcels  of  land  described  in  the 


Code  §  18]       APPROPRIATION  OF  PROPERTY.  97 

application  herein  as  follows:  1st.  To  the  owner  or  owners  of  lot  or 
parcel  No.  1. 

Value  of  land,  including  buildings  and  other  structures  situated  wholly 
on  part  taken,  dollars  and cents    ( $ ) . 

Damages  to  residue dollars  and cents    ( $ ) . 

Value  of  buildings  [or  other  structures]  situated  partly  on  part  taken, 
dollars  and cents    ( $ ) . 

To  the  owner  or  owners  of  lot  or  parcel  No.  2,  etc. 

(To  be  signed  by  all  the  Jurors;  see  §  16  of  the  Code.) 

§18.  [Orders  as  to  payment  or  deposit  of  assessment.]1 
The  court  shall  make  such  order  as  to  payment,  deposit  or  dis- 
tribution of  the  amounts  assessed  as  may  seem  proper,  may 
require  adverse  claimants  to  all  or  any  part  of  the  money  or 
property  to  interplead  and  fully  determine  their  rights  in  the 
same  proceeding  and  may  direct  the  time  and  manner  in  which 
possession  of  the  property  condemned  shall  be  taken  or  deliv- 
ered, and  may,  if  necessary,  enforce  any  order  giving  posses- 
sion ;2 

[Effect  of  payment  or  deposit.]  and  upon  the  payment  or 
deposit,  by  the  corporation,  of  the  amount  assessed,  as  ordered 
by  the  court,  an  absolute  estate  in  fee  simple  shall  be  vested  in 
said  corporation,  unless  a  lesser  estate  or  interest  is  asked  for 
in  the  application,  in  which  case  such  lesser  estate  or  interest 
as  is  so  asked  for  shall  be  vested ;  and  any  municipal  corpora- 
tion shall  have  the  power  to  again  appropriate,  in  conformity 
with  the  provisions  of  this  act,  any  real  estate  which  it  has  pre  • 
viously,  lawfully  appropriated,  in  order  to  perfect,  in  it,  a  title 
in  fee  simple  absolute  to  such  previously  appropriated  real  es- 
tate.    [1906,  April  14,  98  v.  164.] 

(1)  Old  sections. — This  section  lease,  and  the  lease  expires  before 
corresponds  to  §§2247  and  2248  possession  is  taken,  the  city  must 
R.  S.   (repealed).  nevertheless     pay     the     lessee     the 

(2)  Property  subject  to  lease.  amount  awarded  to  it  before  taking 
— If  city  is  given  right  to  take  pos-  possession.  Cleveland  v.  Cuyahoga, 
session    of    property    subject    to    a  etc.,  Society,  41  O.  S.  600. 

FORM   OF   JUDGMENT    ENTRY. 
State   of  Ohio    County,    Court. 

The  city   [or  village]  of ^ 

Plaintiff, 
v.  >    Judgment  Entry. 

et  al. 

Defendants.     J 
This  cause  coming  on  to  be  heard  upon  the  application  of  the  city  [or 
village]  of for  the  assessment  of  compensation  to  be 


98  THE    OHIO    MUNICIPAL    CODE.  [Code    §  19 

paid  to  the  owners  of  the  lots  described  in  the  application  and  all  interests 
therein  appropriated  by  the  said  city  [or  village]  for pur- 
poses (state  the  purpose  of  the  appropriation)  and  all  parties  having  been 
duly  and  legally  served  with  process  and  a  jury  having  been  impaneled  to 
assess  the  compensation  and  having  viewed  the  premises,  heard  the  testi- 
mony of  witnesses,  the  arguments  of  counsel  and  the  charge  of  the  court  and 
having  returned  their  verdict  into  court  assessing  the  compensation  to  be 
paid  for  the  several  lots  therein  mentioned  as  follows;  (copy  verdict). 
And  the  court  having  examined  all  the  proceedings  herein  finds  them  all 
regular  and  according  to  law  and  does  further  find  that  said  lots  of  land 
and  the  several  interests  therein  belonged  to  the  persons  whose  names  are 
set  opposite  to  them  as  below  set  forth. 

It  is  therefore  ordered  and  adjudged  that  said  verdict  and  the  several 
assessments  made  therein  be  and  they  are  hereby  confirmed. 

It  is  further  ordered  that  said  corporation  pay  [or  secure  to  be  paid  by  a 

deposit  of  money  under  the  direction  of  this  court]  within days  the 

amount  of  compensation  so  assessed  for  the  use  of  the  following  named 
persons  (give  names  of  owners  and  amount  of  compensation  assessed  to 
each).  And  it  is  further  ordered  that  upon  payment  [or  deposit]  by  said 
corporation  of  the  several  amounts  allotted  by  the  jury  to  the  persons 
above  mentioned  as  the  owners  of  the  several  lots,  or  into  court,  that  the 
city  [or  village]  shall  be  entitled  to  all  interests  and  estate  in,  and  to  the 
possession  of,  the  lots  and  parcels  above  mentioned  and  that  an  order  shall 

issue  to  the  sheriff  of County,  to  put  the  plaintiff  into 

possession  of  said  property  and  interests. 

It  is  further  ordered  that  said  corporation  within days  from 

this  date,  pay  the  costs  herein,  taxed  at dollars. 

§  19.  [Costs,  how  paid.]1  The  costs  2  of  the  inquiry  and  as- 
sessment shall  be  paid  by  the  corporation,  and  all  other  costs 
taxed  as  the  court  may  direct;  provided,  that  at  or  after  the 
time  of  making  the  application,  the  corporation  may  offer  to 
confess  judgment  for  an  amount  to  be  stated,  and  the  costs 
then  made,  in  favor  of  any  owner,  who  in  any  manner  enters 
appearance,  or  upon  whom  or  whose  agent  personal  service  may 
be  made ;  whereupon,  if  such  owner  shall  refuse  to  accept  such 
offer,  and  on  the  trial  shall  not  recover  more,  he  shall  pay  all 
costs  accruing  after  the  offer,  and  an  offer  so  made  shall  be  gov- 
erned by  the  provisions  of  section  5142  of  the  Kevised  Statutes 
of  Ohio. 

vision  7,  title  12.    This  provision  is 
(1)   Old    section. —  This    section      omitted  here, 
corresponds  to  old  §  2249  R.  S.  (re-  (2)   Jury    fees    in    the    Probate 

pealed).  §  2249  contained  a  provi-  Court  held  not  to  be  a  part  of  the 
sion  making  it  applicable  to  cases  costs  in  an  appropriation  proceed- 
under  subdivision  11.  chapter  4,  di-      ing.    Hill  v.  Durr,  47  B,  440. 


Code  §  20]      APPROPRIATION  OF  PROPERTY.  99 

§  5142  R.  S.     [Such  offers  not  to  affect  the  trial.]  An  offer 

made  as  provided  in  the  three  preceding  sections  *  shall  not  be 
deemed  an  admission  of  the  cause  of  action,  nor  of  the  amount  to 
which  the  plaintiff  is  entitled;  nor  shall  it  be  a  cause  of  con- 
tinuance of  the  action,  or  a  postponement  of  the  trial,  or  given 
in  evidence  or  mentioned  on  the  trial.  [51  v.  57,  §§  49 3,  494, 
498,  499 ;  S.  &  C.  1094,  1095.] 

(1)   Sections  referred  to  herein  25  O.  S.  301;  Tipton  v.  Tipton,  49 

are   §§   5139,   5140  and  5141  R.   S.  O.  S.  364;  Armstrong  v.  Spears,  18 

As  to  form  and  sufficiency  of  offer  O.  S.  373;  Fike  v.  France,  12  O.  S. 

and  construction  of  sections  referred  624. 
to,  see  Adams  et  al.  v.  Phifer  et  al., 

FORM  OF  OFFER  TO  CONFESS  JUDGMENT. 

State  of  Ohio,    County Court. 

The  city  [or  village]  of 


Plaintiff, 
v. 
.  ..et  al, 

Defendants. 


Offer  to  confess  judgment. 


Now  comes  the  city  [or  village]  of , 

plaintiff  corporation  herein,  and,  before  the  impaneling  and  swearing  of  the 
jury  herein,  (or  here  insert  time  when  offer  is  made)  offers  to  allow  judg- 
ment to  be  taken  in  this  action  in  favor  of ,  a  party  defendant 

herein  and  against  said  city  [or  village]  in  the  sum  of dollars  and 

cents,  as  compensation  to  said owner  of 

lot  [or  parcel]  No described  in  the  application  herein,  together  with 

the  costs  to  the  time  of  this  offer. 


City  [or  village]  Solicitor. 


§  20.  [Interested  parties  may  give  bond,  etc.]1  Any  per- 
son may,  before  or  after  the  passage  of  an  ordinance  for  opening 
a  street  or  other  public  highway,  execute  his  bond  2  payable  to 
the  corporation  to  the  acceptance  of  council,  conditioned  for 
the  payment  of  all  damage  which  may  be  assessed  by  the  jury ; 
and  such  bond  shall  be  good  in  law,  and  if  such  person  pay  or 
deposit  according  to  the  order  of  court,  then  such  street  or  other 
highway  shall  be  opened ;  or  the  corporation  may  at  its  discre- 
tion make  such  payment  or  deposit,  and  collect  by  law  the 
amount  of  such  damages  of  such  person  or  his  sureties.3 


100                                   THE    OHIO    MUNICIPAL    CODE.  [Code    §    21 

(1)  Old  section,  2251  R.  S.,  re-  No  repayment.— §  2251  R.  S. 
pealed.             m  (repealed)   was  held  not  to  contem- 

( 2 )  Form  of  bond. —  See  form  plate  any  repayment  to  interested 
used  and  discussed  in  Inclined  party  giving  bond  other  than  that 
Plane  Ry.  Co.  v.  Cincinnati,  23  B.  found  in  the  beneficial  interest  be- 
68.  cause  of  the  proposed  appropriation. 

(3)  Validity  of  bond  to  pay  all  Ry.  Co.  v.  Cincinnati,  25  B.  91; 
damages,  see  Toledo  Ry.  Co.  v.  Fos-  (aff'd  by  Supreme  Court,  32  B. 
toria,  7  C.  C.  293,  299.  400)  and  city  cannot  legally  make  a 

Acceptance  of  bond. —  As  to  what  contract  for  such  repayment.     lb. 
constitutes,   see  Ry.   Co.  v.   Cincin- 
nati, 23  B.  68. 


§  21.  [Review  of  proceedings;  appeal  to  Court  of  Common 
Pleas.]1  The  municipal  corporation,  or  the  owner  of  any  prop- 
erty, the  value  of  which  has  been  assessed,  as  herein  provided, 
shall  have  the  right  to  prosecute  error  as  in  other  civil  actions ; 
provided,  that  the  trial  court  may,  upon  proper  terms,  suspend 
the  execution  of  any  order,  but  in  all  cases  where  the  municipal 
corporation  pays  or  deposits  the  compensation  assessed,  and  gives 
adequate  security  for  any  further  compensation  and  costs,  the 
right  to  take  and  use  the  property  condemned  shall  not  be  af- 
fected by  any  such  review.2 

Where  the  proceeding  is  had  in  the  Probate  Court,  or  in  the 
Insolvency  Court,  any  party  interested  in  the  inquiry  and  as- 
sessment may  take  an  appeal  to  the  Court  of  Common  Pleas; 
and  thereupon  the  same  proceedings  shall  be  had  as  if  the 
application  had  been  originally  made  in  that  court,  except  that 
the  corporation  shall  not  be  required  to  give  notice  of  its  appli- 
cation, and  the  inquiry  and  assessment  shall  be  limited  to  the 
case  of  the  party  taking  the  appeal ;  and  the  court  shall  make 
such  order  for  the  payment  of  the  costs  accruing  upon  the  ap- 
peal as  may  seem  equitable  and  just. 

(1)   Old  sections. —  This  section  poration.     The   code   section   above 

corresponds  to  old  §§  2252,  2253  and  allows  such  appeal  to  Common  Pleas 

2254  R.  S.   (repealed).     §  2259   (re-  Court. 

pealed)   provided  that  there  should  (2)   Interest. —  In    a    new    pro- 
be no  appeal  by  the  condemning  cor-  ceeding   after    possession   taken   by 


Code  §  22]     APPROPRIATION  OF  PROPERTY. 


101 


condemning  corporation  and  rever-  When  compensation  payable. — 

sal  of  first  proceeding  the  jury  may  Owners  of  land  taken  for  public  pur- 
include  in  the  compensation,  inter-  poses  may  waive  the  right  to  im- 
est  on  the   amount  due,   from  the  mediate   payment.     State  v.   Irvin, 
time  of  taking  possession.     Ry.  Co.  12  Dec.   330. 
v.  Koblentz,  21  O.  S.  334. 

§  22.  [Neglect  to  pay  or  take  possession  in  six  months.]1 
When  a  municipal  corporation  makes  an  appropriation  of  prop- 
erty, and  fails  to  pay  for  or  take  possession  of  the  same  within 
six  months  2  after  the  assessment  of  compensation  shall  have 
been  made,  its  right  to  make  such  appropriation  on  the  terms  of 
the  assessment  so  made  shall  cease  and  determine,  and  any 
lands  so  appropriated  shall  be  relieved  from  all  incumbrance  on 
account  of  any  of  the  proceedings  in  such  case,  and  the  judgment 
or  orde^  of  the  court  directing  such  assessment  to  be  paid  shall 
cease  to  be  of  any  effect,  except  as  to  the  costs  adjudged  against 
the  corporation,  and  upon  motion  of  any  defendant,  said  costs 
may  be  retaxed,  and  a  reasonable  attorney's  fee  be  paid  to  the 
attorney  of  such  defendant,  which,  together  with  any  other 
proper  expenses  incurred  by  such  defendant,  may  be  included  in 
such  costs.3 


(1)  Old  section. —  This  section 
corresponds  to  §  2260  R.  S.  (re- 
pealed). §  2261  R.  S.  making  the 
chapter  applicable  to  hamlets  is  re- 
pealed and  there  is  no  correspond- 
ing provision  in  the  code. 

(2)  When  time  begins  to  run. 
—  Time  commences  to  run  from  the 
entry  of  the  judgment  or  order  di- 
recting the  assessment  to  be  paid 
and  not  from  the  rendition  of  the 
verdict.  Ryan  v.  Hoffman,  26  O.  S. 
109. 

(3)  Owner's  remedies. —  If  the 
corporation  takes  possession  after 
the  expiration  of  the  six  months 
intending  to  proceed  under  the  ap- 
propriation proceedings,  the  land 
owner  may  elect  either  to  sue  for  the 
amount  awarded  him  in  the  appro- 


priation proceedings  or  have  dam- 
ages assessed  at  the  time  posses- 
sion is  taken.  But  having  elected 
to  sue  for  the  amount  awarded  in 
the  appropriation  proceedings  he  is 
entitled  to  interest  only  from  the 
time  possession  was  taken.  Toledo 
v.  Groll,  2  C.  C.  199.  (Affirmed 
Sup.  Ct.  23  B.  220.)  Webber  v.  To- 
ledo, 3  C.  C.  (N.  S.)  319;  23  C.  C. 
237. 

Where  city  appropriates  and  takes 
possession  of  property,  but  does  not 
pay  the  compensation  the  owner 
cannot  maintain  ejectment  but  must 
sue  for  compensation.  Webber  v. 
Toledo,  3  C.  C.  (N.  S.)  319;  23  C.  C. 
237. 

A  corporation  cannot  be  compelled 
by  mandamus  to  take  possession  of 
the  land  and  pay  the  compensation 


102 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  22 


on  its  refusal  to  do  so.  State  v. 
R.  R.  Co.,  17  0.  S.  103. 

Waiver  by  acceptance  of  de- 
posit.—  The  land  owner  is  not 
bound  to  accept  the  compensation, 
deposited  after  the  six  months,  but 
if  he  does  so  he  waives  strict  com- 
pliance with  the  statute.  Cincin- 
nati v.  Hosea,  19  C.  C.  744  (affirmed 
66  O.  S.  687) .  And  in  such  case  the 
owner  cannot  demand  interest  on 
the  fund  deposited.    16. 

Land  owner  may  waive  his  rights 
to  have  the  property  after  the  ex- 
piration of  the  six  months  and  by 
accepting  the  compensation,  ratify 
the  proceedings.  Ryan  v.  Hoffman, 
26  O.  S.  109. 

When  owner's  right  barred. — 

The  right  of  the  owner  whose  prop- 
erty has  been  appropriated  and, 
after  six  months,  taken  possession 
of,  but  not  paid  for,  is  not  barred  by 
the  statute  of  limitations  in  less 
than  21  years.  §  4981  R.  S.,  the 
six  years'  statute,  is  not  applicable. 
Webber  v.  Toledo,  3  C.  C.  (N.  S.) 
319;  23  C.  C.  237. 

Who  may  sue. —  Conveyance  by 
the  land  owner  of  property  con- 
demned, carries  with  it  the  right  of 
action  for  taking  it  after  the  ex- 
piration of  the  six  months.  Clarke 
v.  Cleveland,  9  C.  C.  118. 

The  devisee  of  a  testator  who 
owned  part  of  the  property  con- 
demned, and  to  whom  the  remainder 
was  conveyed  after  the  appropria- 
tion, but  before  possession  taken, 
has  the  right  to  maintain  an  action 
for  amount  assessed  in  the  appro- 
priation proceedings  where  the  cor- 
poration has  failed  to  take  posses- 
sion within  the  six  months.  Webber 
v.  Toledo,  3  C.  C.  (N.  S.)  319;  23 
C.  C.  237. 

Refusal  by  corporation  before 
six  months  expires. —  A  municipal 
corporation  may  waive  its  right  to 
take  property  condemned,  before  the 
expiration  of  the  six  months  and  in 


such  case  if  the  waiver  is  deter- 
mined to  have  been  made  the  corpo- 
ration must  pay  attorney  fees,  etc., 
as  required  in  case  of  failure  to  take 
after  the  six  months.  Andrews  v. 
Hyde  Park,  20  C.  C.  278. 

A  motion  to  retax  costs  in  such 
case  does  not  come  within  §  5357 
R.  S.  providing  that  "  the  motion  to 
vacate  a  judgment  because  of  its 
rendition  before  the  action  stood 
regularly  for  trial  can  be  made  only 
in  the  first  three  days  of  the  suc- 
ceeding term."    lb. 

Dismissal  of  proceedings. —  Pro- 
ceedings to  appropriate  by  a  munici- 
pal corporation  may  be  dismissed  by 
the  city  solicitor  with  or  without 
the  direction  of  the  legislative  board 
of  the  city,  but  in  case  of  such  dis- 
missal, the  city  must  pay  counsel 
fees  and  other  expenses  deemed  just 
by  the  court,  to  the  property  own- 
ers. Cincinnati  v.  Thrall,  6  N.  P. 
158. 

Proceeding  under  invalid  law. 
— Where  the  municipal  corporation 
has  sought  to  take  property  under 
a  law,  declared  unconstitutional 
and  because  of  the  unconstitutional- 
ity has  been  prevented  from  taking 
the  property,  it  is  not  liable  to  pay 
counsel  fees,  etc.,  as  in  case  where  it 
fails  to  take  possession  within  six 
months  after  a  valid  appropriation. 
Hyde  Park  v.  Grant,  6  N.  P.  471; 
(in  Supreme  Court,  47  B.,  831; 
67  O.  S.  166). 

But  the  claim  for  attorney's 
fees,  etc.,  cannot  be  defeated  on  the 
ground  that  the  appropriating  or- 
dinance was  invalid.  Andrews  v. 
Hyde  Park.  20  C.  C.  278. 

No  bar  to  new  proceedings. — 
The  failure  to  pay  and  take  posses- 
sion within  the  six  months  is  no 
bar  to  a  new  proceeding  to  appro- 
priate the  same  property  by  the 
same  corporation,  after  the  expira- 


Code  §  23]    sale  or  lease  of  property. 


103 


tion  of  the  six  months.  Trustees  of 
Southern  Ry.  v.  Haas,  42  O.  S. 
239. 

Character  of  taking  after  six 
months. —  Where  a  city  takes  pos- 
session by  paying  compensation  aft- 
er the  six  months,  it  gets  title  by 
appropriation  and  not  by  purchase. 
Ryan  v.  Hoffman,  26  O.  S.  109,  122. 


Section  applies  to  damages  for 
change  of  grade. —  Former  §  2260 
R.  S.,  to  which  the  present  sec- 
tion corresponds,  was  held  applica- 
ble to  application  to  assess  damages 
to  abutting  property  owners  for 
change  of  grade  or  other  improve- 
ments. Toledo  v.  Jacobson,  11  C.  C. 
220    (aff'd  38  B.  248). 


Second.  Sale  or  Lease  of  Property.1 
Sec.  23.  [Lease  or  sale  of  corporate  property.]  All  munici- 
pal corporations  shall  have  power  to  sell  or  lease  any  real  estate 
or  to  sell  any  personal  property  belonging  to  the  corporation, 
when  such  real  estate  or  personal  property  is  not  needed  for  any 
municipal  purpose.2 


(1)  Old  sections.— These  pro- 
visions relating  to  the  sale  or  lease 
of  property  correspond  to  chapter 
16,  division  8,  title  12,  R.  S.,  §§ 
2673  to  2675-10  R.  S.  inclusive,  of 
which  §§  2673-2675  inclusive, 
2675-5,  and  2675-10  are  repealed. 
Former  sections  1552  and  1692  (par- 
agraph 34)  R.  S.  (repealed)  also 
gave  the  municipality  the  power  to 
sell. 

Other  Code  provisions. —  Sec.  7, 
(paragraph  26)  of  the  Code,  gives 
municipalities  the  right  to  sell  or 
lease  real  estate.  But  though  the 
power  is  given  in  general  terms 
there,  its  exercise  would  be  limited 
by  the  special  provisions  of  this  and 
subsequent  sections.  See  Kerlin 
Bros.  v.  Toledo,  20  C.  C.  603. 

As  to  passage  of  ordinance  for  sale 
or  lease  of  property,  see  §  122  of  the 
Code. 

(2)  Scope  of  power—  General- 
ly.— As  a  general  rule,  a  corporation, 
if  not  restrained  by  its  charter  may 
dispose  of  any  property  which  it  has 


a  right  to  acquire.  Newark  v.  El- 
liott, 5  O.  S.  114;  Reynolds  v.  Stark 
County,  5  O.  204. 

Land  under  a  bridge  used  by  the 
city  for  support  to  the  bridge  and 
not  used  as  a  street,  may  be  leased 
by  the  city  for  any  purpose  not  in- 
consistent with  its  use  as  a  support 
for  the  bridge.  Hicard  Boiler  &  En- 
gine Co.  v.  Toledo,  25  C.  C.  64. 

Sale  on  time. —  Authority  to  sell 
on  terms  satisfactory  to  a  municipal 
board,  gives  power  to  sell  on  time. 
Cincinnati  v.  Dexter,  55  O.  S.  93; 
Reynolds  v.  Stark  County,  5  O.  204. 

Sale  of  gas  plant. —  Sale  of  its 
gas  plant  is  within  the  power  of  a 
municipality  under  a  provision  au- 
thorizing it  to  sell  real  or  personal 
property  not  needed  for  its  use. 
Thompson  v.  Nemeyer,  59  O.  S.  486. 

Property  acquired  for  specific  pur- 
pose.—  Where  the  municipality  ac- 
quired property  for  a  specific  and 
limited  purpose,  it  cannot  be  author- 
ized to  sell  such  property  as  against 


104 


THE   OHIO   MUNICIPAL    CODE. 


[Code  §24 


the  reversioner.     Board   v.   Edson, 
18  O.  S.  221. 

Where  land  is  given  to  a  munic- 
ipality for  corporate  purposes,  or 
where  the  land  is  acquired  by  pur- 
chase, the  municipality  may  dispose 
of  it  as  individuals  might.  Rey- 
nolds v.  Stark  County,  5  0.  204; 
Le  Clerq  v.  Gallipolis,  7  0.  (pt.  1) 
218;  but  where  the  corporation 
takes  as  a  trustee,  to  hold  for  pre- 
scribed uses,  the  cestui  que  trust  re- 
tains a  vested  estate,  the  enjoyment 
of  which  will  be  protected  in  equity. 
Le  Clerq  v.  Gallipolis,  7  O.  (pt.  I) 
218. 

Conveyance  by  city — Effect. — 
A  deed  by  a  municipal  corporation 
for  the  conveyance  of  property, 
passes  the  legal  title  to  the  pur- 
chaser, although  the  consideration 
expressed  is  far  below  the  value  of 
the  property  or  merely  nominal. 
Newton  v.  Mahoning  Co.,  26  O.  S. 
618. 


As  to  when  court  will  interfere 
because  of  insufficiency  of  price,  see 
Kerlin  Bros.  v.  Toledo,  20  C.  C.  603. 

When  the  contract  whereby  the 
grant  is  conveyed  contains  the  ele- 
ments of  a  valuable  consideration  as 
where  the  grantee  surrendered  the 
right  to  operate  a  ferry  between 
certain  points,  in  consideration  of 
wharf  and  boat  landing  privileges, 
equity  cannot  be  invoked  to  amend 
the  contract  or  revoke  the  grant 
Without  an  otter  to  restore  the  rights 
parted  with  when  the  contract  was 
executed.  Whether  the  grant 
amounted  to  an  easement  or  a  mere 
license,  it  is  irrevocable  when  exe- 
cuted. Cincinnati  v.  Bridge  Co.,  20 
C.  C.  396. 

Form. — As  to  the  manner  in 
which  a  municipal  corporation 
should  execute  a  deed,  see  Tiffin  v. 
Shawhan,  43  O.  8.  178. 


Sec.  24.  [Lease  or  sale  of  real  estate;  procedure.]1  No  con- 
tract 2  for  the  sale  or  lease  of  any  real  estate  shall  be 
made  unless  authorized  by  an  ordinance,  approved  by 
the  votes  of  two-thirds 4  of  all  members  elected  to  the 
council,  and  by  the  board5  or  officer  having  supervision  or 
management  of  such  real  estate,  and  when  such  contract  is 
so  authorized,  it  shall  be  made  in  writing6  by  the  board  or 
officer  having  such  supervision  or  management  and  only  with 
the  highest  bidder,7  after  advertisement  once  a  week  for  five 
(5)  consecutive  weeks8  in  a  newspaper9  of  general  circulation 
within  the  corporation,  provided  that  such  board  or  officer 
may  reject  any  or  all  bids  and  readvertise  until  all  such  real 
estate  is  sold  or  leased,  as  the  case  may  be ; 

[Procedure  for  sale  or  lease  of  site  for  passenger  railroad 
station.]  provided,  that  whenever  any  city  owns  real  estate 
suitable  for  the  location  of  a  passenger  railroad  station,  and 
council  shall  by  ordinance  declare  that  it  is  necessary  that  such 


Code  §  24]  sale  or  lease  of  property  104a 

land  be  devoted  to  such  use,  it  shall  be  competent  for  such  city 
to  sell  or  lease  or  exchange  such  land  to  such  railroad  or  rail- 
roads for  such  purpose  in  the  following  manner:  An  ordi- 
nance authorizing  and  directing  the  mayor  of  the  city  to  deed 
or  lease  the  land  shall  be  passed;  council  shall  fix  in  such 
ordinance  by  metes  and  bounds  the  amount  of  land  to  be 
sold,  leased  or  exchanged,  the  quantity  of  interest  sold,  leased 
or  exchanged,  and  the  consideration  to  be  paid  or  exchanged 
therefor  by  such  railroad  or  railroads,  and  in  such  ordinance 
shall  call  thereon  a  special  election,  to  be  held  upon  a  day 
fixed  by  said  ordinance  not  less  than  thirty  (30)  days  from 
the  passage  thereof,  and  a  majority  of  all  the  votes  cast  on 
such  proposition  shall  be  necessary  to  its  ratification,  and 
when  so  ratified,  said  ordinance  shall  be  effective,  and  the 
mayor  shall  proceed  to  execute  a  deed  of  conveyance  or  lease 
of  said  property  as  therein  provided,  and  in  holding  such  spe- 
cial election,  the  provisions  of  section  2837,  Revised  Statutes, 
shall  apply.     [1906,  April  14,  98  v.  165.] 

(1)  Old  sections. —  Compare  old  third  offer  for  both  taken  together, 
sections  2673  and  2673a  R.  S.  (re-  constitutes  in  reality  three  bids, 
pealed).  and  a  sale  of  the  outside  property 

(2)  Strict  construction. —  The  based  on  the  first  offer  is  not  invali- 
formalities  required  by  the  statutes  dated  by  a  condition  attached  to 
for  the  sale  of  property  of  a  city  the  last  offer.  Kerlin  Bros.  v.  Tole- 
must    be    strictly    complied    with.  do,  20  C.  C.  603. 

Kerlin  Bros.  v.  Toledo,  20  C.  C.  603.  Insufficiency  of  price. — To  author- 

No  estoppel  against  municipality.  ize  a  court  to  interfere  with  the  ac- 

—  A  contract   by   a   city  which   is  tion  of  a  city  council  in  a  sale  of 

void  because  bids  were  not  first  ad-  the    property    of   the    city    on   the 

vertised  for,  imposes  no  liability  on  ground    of  the  insufficiency  of  the 

the   city.     Wellston  v.   Morgan,   65  price,  the  price  received  must  have 

O.  S.  219.  been  so  much  less  than  would  prob- 

No  estoppel  from  the  acts  of  the  ably  be  obtained  by  again  offering 

city    officers    can    arise    to    cure   an  the  property  that  it  might  be  said 

omission  to  advertise.    Lancaster  v.  by  all   men  of  fair  judgment  that 

Miller,  58  O.  S.  558.  the  acceptance  of  the  bid  amounted 

Bids  —  Construction. —  A    bid    in  to  a  reckless  and  improvident  act. 

response    to    an    advertisement    for  Kerlin    Bros.    v.    Toledo,    20    C.    C. 

sale  of  natural  gas   plant,   making  603. 

one  offer  for  the  part  of  the  prop-  Bidding    in    general. —  See    notes 

erty  outside  the  city,  another  offer  under   §§59  and   143  of  the  Code, 

for  the  part  within  the  city  and  a  (3)   Real    estate. —  As    to    what 


105 


THE   OHIO    MUNICIPAL    CODE. 


[Code  §24 


property  comes  within  the  terms 
"real  estate"  as  used  in  a  section 
such  as  this,  see  Kerlin  Bros.  v.  To- 
ledo, 20  C.  C.  603.  The  term  is 
broader  as  here  used  than  it  is 
under  the  general  definition  of  the 
law.     lb.  • 

Council  must  proceed  under  this 
section  where  part  of  the  property- 
sold  is  real  estate,  and  it  is  sold 
as  an  entirety.  See  Kerlin  Bros.  v. 
Toledo,  8  N.  P.  62. 

(4)  Two-thirds  vote.— As  to 
what  would  satisfy  the  require- 
ments of  the  statute,  relative  to 
"  votes  of  two-thirds  of  all  mem- 
bers elected  to  Council,"  see  State 
ea>  rel.  v.  Orr,  61  O.  S.  384;  Guern- 
sey Co.  v.  Cambridge,  7  C.  C.  72. 

(5)  Concurrence  of  board. — 
Under  the  present  statute,  the  sale 
of  city  property  cannot  be  made 
by  Council,  without  the  concurrence 
of  the  board  or  officer  having  the 
property  in  charge.  As  to  this  mat- 
ter under  former  statutes,  see  Ker- 
lin Bros.  v.  Toledo,  20  C  C.  603; 
Newton  v.  Mahoning  Co.,  26  O.  S. 
618. 

(6)  Manner  of  executing  a  con- 
veyance by  a  municipal  corporation. 

See  Tiffin  v.  Shawhan,  43  O.  S.  178; 
Young  v.  Mahoning  Co.,  7  O.  F.  D. 
324. 

(7)  Highest      bidder.—  Under 

this  wording  of  the  law,  the  con- 
tract for  sale  must  be  made  with 
the  highest  bidder.     (See  Beaver  v. 


Blind  Asylum,  19  O.  S.  97;  Boren 
v.  Darke  County,  21  O.  S.  311), 
unless  the  board  exercise  its  power 
to  reject  bids.  As  to  enforcement 
of  right  of  bidder  by  mandamus, 
see  same  cases. 

(8)  Provisions  as  to  advertis- 
ing for  bids  are  designed  for  the 
protection  of  the  tax  payer  and  are 
peremptory.  Uppington  v.  Oviatt, 
24   O.    S.   232. 

And  advertisement  for  less  than 
the  statutory  period  would  render 
the  sale  void.  McCloud  v.  Colum- 
bus, 54  O.  S.  439. 

As  to  what  length  of  time  of 
publication  is  necessary  to  fulfill 
the  requirement  "  once  a  week  for 
five  consecutive  weeks"  see  Early 
v.  Doe,  16  How.  (U.  S.)  610;  Fen- 
ner  v.  Cincinnati,  8  N.  P.  342;  Gil- 
fillan  v.  Koke,  1  W.  L.  M.  704; 
Harmon  v.  Whittemore,  1  B.  109. 

(9)  Newspaper. —  The  require- 
ment of  publication  in  a  newspaper 
of  general  circulation  does  not  for- 
bid additional  publications  in  other 
papers.  This  is  not  a  squandering 
of  funds.  Wasem  v.  Cincinnati,  2 
C.  S.  C.  R.  84. 

Publication  in  a  newspaper 
means  publication  in  the  English 
language,  in  the  absence  of  provi- 
sions to  the  contrary.  Cincinnati 
v.  Bickett,  26  O.  S.  49.  The  publi- 
cation is  legal  although  the  news- 
paper is  published  only  on  Sunday. 
Hastings  v.  Columbus,  42  O.  S. 
585 


ORDER  OF  PROCEDURE  IN  SELLING  OR  LEASING  REAL  PROP- 
ERTY OF  MUNICIPALITY. 


1.  An  ordinance  by  council,  two-thirds  of  all  members  concurring,  au- 
thorizing the  sale  or  lease. 

2.  Approval  of  this  ordinance  by  proper  board  or  officer,  and  by  the 
mayor. 

3.  Advertisement,  inviting  bids  for  the  purchase  or  lease  of  the  property, 

4.  Deed  or  lease  conveying  the  property  sold  or  leased. 

Note. —  The  steps  contemplated  to  be  taken  under  §  24  above,  are  not 


Oode§  24]     sale  or  lease  of  property.  106 

definitely  set  out.  It  seems  clear  that  there  are  two  essential  acts  required 
to  be  taken  to  consummate  the  sale  of  property,  viz.,  first,  the  legislative 
determination  to  sell;  and  second,  the  carrying  out  of  that  determination 
by  the  executive  or  administrative  department.  Council,  with  the  approval 
of  the  board  or  officer  having  charge  of  the  property  to  be  sold,  finding  the 
property  not  needed  for  municipal  purposes,  authorizes  the  contract  for  its 
sale  to  be  made  with  the  highest  bidder  upon  advertisement.  The  passage 
of  this  ordinance  completes  the»legislative  step  in  the  sale.  The  advertis- 
ing, or  rejection  of  bids  and  readvertising,  and  the  execution  of  the  deed, 
are  left  entirely  to  the  board  or  officer  having  charge  of  the  property,  and 
council  cannot  control  the  exercise  of  these  powers,  unless,  of  course, 
council  should  repeal  its  ordinance  at  some  time  before  the  sale  authorized 
to  be  made  is  consummated.  The  steps  set  out  here  would  seem  to  satisfy 
all  the  requirements  of  the  section,  and  the  forms  which  follow  doubtless 
would  be  a  sufficient  compliance  with  it.  It  will  be  noticed  that  in  the 
form  of  deed  given  provision  is  made  for  the  signature  of  the  mayor  and 
the  affixing  of  the  corporate  seal  of  the  municipality  by  that  officer. 
The  section  of  the  code  above  does  not  explicitly  require  either  the  seal  or 
the  mayor's  participation  in  the  sale,  but  since  §  1745,  R.  S.,  which  is  not 
repealed  by  the  code  and  which  is  not  inconsistent  with  any  of  its  pro- 
visions, makes  the  mayor  the  custodian  of  the  corporate  seal,  and  since  the 
proper  method  of  conveying  real  estate  by  a  municipal  corporation  is  over 
its  corporate  seal,  the  forms  here  given  provide  for  such  signature  and  seal. 
(See  Dillon  on  Municipal  Corporations,  §  581;  City  of  Tiffin  v.  Shawhan, 
43  O.  S.  178,  185;  Newton  et  al.  vs.  Commrs.,  26  O.  S.  618,  622.)  It  will 
be  noticed  also  that  the  form  of  deed  given  below  does  not  contain  a  gen- 
eral warranty.     A  warranty  deed  may  of  course  be  given. 


FORM  OF  ORDINANCE  FOR  SALE  OF  REAL  ESTATE  BY 

MUNICIPALITY. 


An  Ordinance  No. 


Authorizing  the  sale  of  (here  insert  general  description  of  property)  not 
needed  for  any  municipal  purpose. 

Be  it  ordained  by  the  council  of  the  city  [or  village]  of , 

State  of  Ohio,  two-thirds  of  all  members  elected  thereto  concurring, 

Sec.  1.  That  the  following  described  real  estate  belonging  to  the  city 
[or  village]  of ................ .,  is  not  needed  for  any  municipal  pur- 
pose, to-wit: 

(Here  insert  legal  description  of  property  to  be  sold.) 

Sec.  2.     That  the (naming  the  board  or  officer  having 

the  supervision  or  management  of  the  property  to  be  sold)  be  and  hereby 
is  authorized  to  sell  said  real  estate  to  the  highest  bidder  according  to  law, 
upon  the  following  terms :      ( Here  insert  terms  of  payment,  whether  cash  or 

otherwise)    and  the  said (naming  the  board  or  officer) 

and  the  mayor  of  the  city  [or  village]  are  hereby  authorized  to  convey  said 


107  the  ohio  municipal  code.  [Code  §  24 

real  estate  by  deed  (here  add,  if  desired,  the  words  "of  general  warranty") 
to  the  hignest  bidder  therefor  according  to  law. 
Passed ,  19 


Attest-  President  of  Council. 


Clerk. 
(This  ordinance  must  be  approved  by  the  board   or  officer  having  the 
supervision  or  management  of  the  real  estate  to  be  sold  and  must  also  be 
presented  to  the  mayor  for  his  approval  as  other  ordinances.     As  to  paB- 
«age  under  suspension  of" rules  see  §  122,  of  the  code.) 

FORM    OF    ADVERTISEMENT    FOR    BIDS. 

LEGAL  NOTICE. 

Notice  is  hereby  given  that  sealed  bids  will  be  received  at  the  office  of 

the. (here  insert  name  of  the  board  or  officer  having 

supervision  or  management  of  the  real  estate  to  be  sold)  until  12  o'clock 

noon  on  the day  of ,  19. . . .,    (this  day  should  be 

not  less  than  five  full  weeks  from  the  first  advertisement)  for  the  pur- 
chase of  the  following  described  real  estate:  (Here  insert  legal  descrip- 
tion of  property  to  be  sold. ) 

Said  property  is  to  be  sold  and  conveyed  to  the  highest  bidder  (here  in- 
sert the  words  "by  general  warranty  deed,"  if  so  specified  in  the  ordinance) 
upon  the  following  terms:  (Here  insert  terms  of  payment  specified  in  the 
ordinance. ) 

The  right  is  reserved  to  reject  any  and  all  bids. 


(To  be  signed  by  the  officer, 

or  by  the  president  of  the 

Clerk  of  Board  [or  officer },  board,  having  supervision  or 

management  of  the  real  es- 
tate to  be  sold.) 

FORM   OF   DEED   BY   MUNICIPAL    CORPORATION. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  whereas,  on  the 

day  of , ,   19 ,  the  council  of   the  city    [or  village]    of 

,  State  of  Ohio,  passed  a  certain  ordinance,  two- thirds  of 

all  members  elected  thereto  concurring,  authorizing  the  sale  of  the  real 
estate  hereinafter  described,  and, 

Whereas,  pursuant  to  said  ordinance,  advertisement  was  had  in  a  news- 
paper of  general  circulation  in  said  city  [or  village]  for  five  consecutive 
weeks,  inviting  sealed  bids  for  said  real  estate,  and, 

Whereas,  at  the  time  fixed  in  said  advertisement  for  the  receipt  of  said 
bids,    presented  his  certain  bid  for  said  real  estate, 


Code  §  24]     sale  or  lease  of  property  107a 

which  was  the  highest  bid  therefor,  and  which  said  bid  has  been  duly  ac- 
cepted, 

Now,  therefore,  pursuant  to  the  premises,  the  said  city  [or  village]  of 

,  State  of  Ohio,  by ,  its  mayor,  and , 

its ( here  insert   title  of  officer   or   of  the   president  of   the 

board  having  charge  of  the  property  conveyed ) ,  in  consideration  of 

......  dollars  to  it  paid  by ,  the  receipt  of  which  is  hereby 

acknowledged,  does  hereby  grant,  bargain,  sell  and  convey  unto  the  said 

,  his  heirs  and  assigns  forever,  the  following  described  real 

estate,  situate  in  the  city  [or  village]  of ,  in  the  county  of 

,  and  State  of  Ohio,  to- wit :    ( here  insert  legal  description  of  real 

estate  conveyed),  with  all  the  privileges  and  appurtenances  thereunto  be- 
longing, to  have  and  to  hold  the  same  to  the  grantee,  his  heirs  and  assigns 
forever,  as  fully  and  completely  as  said  city  [or  village]  acting  by  its  of- 
ficers as  aforesaid,  by  virtue  of  the  proceedings  hereinbefore  set  forth,  may, 
can  or  should  convey  the  same.  (Covenants  of  general  warranty  may  be 
added  if  authorized.) 

In  witness  whereof,  the  said  city   [or  village]   of ,  by  its 

said  officers,  has  hereunto  caused  to  be  affixed  its  name  and  corporate  seal, 
and  the  names  of  its  said  officers,  and  the  attestation  of  the  Clerk  of  said 
city  [or  village],  this. .  .  .day  of ,  19. . . . 

(Seal  of  city  or  village.) 

The  city   [or  village]   of , 

Attest :  by , 

Mayor. 


Clerk.  (Officer  or  President  of  Board. 

Signed,  sealed,  acknowledged  and  de- 
livered in  presence  of: 


( Witnesses. ) 
State  of  Ohio,  County  of ss. : 

On  this day  of ,  19 .... ,  before  me,  a in  and 

for  said  county,  came ,  Mayor  of  the  city  [or  village]  of 

,  State  of  Ohio,  and ,  the. ..:..,     (here  insert  title 

of  officer  or  of  the  President  of  the  Board  having  charge  of  the  real  estate 
conveyed),  and  severally  acknowledged  the  execution  of  the  foregoing  deed 
to  be  their  voluntary  act  on  behalf  of  the  city  [or  village],  and  the  cor- 
porate act  and  deed  of  said  city  [or  village].    Also  came 

Clerk  of  said  city  [or  village]  and  acknowledged  the  attestation  of  the  fore- 
going deed  to  be  his  voluntary  act  and  deed  as  such  Clerk. 

In  testimony  whereof,  I  have  hereunto  subscribed  my  name  and  affixed 
my  official  seal  the  day  and  year  last  aforesaid. 


(Title  of  officer  taking  acknowledgment.) 

(The  forms  for  lease  of  property  by  the  municipality  may  be  adapted 
from  the  above.) 


108  THE   OHIO   MUNICIPAL   CODE.  [Code  §  25 

Sec.  25.  [Sale  of  personal  property.]  Any  personal  prop- 
erty not  needed  for  municipal  purposes,  the  estimated  value  of 
which  is  less  than  five  hundred  dollars,  may  be  sold  by  the 
board  or  officer  having  supervision  or  management  of  the  same ; 
provided,  that  where  the  estimated  value  of  such  property  ex- 
ceeds five  hundred  dollars  it  shall  be  sold  only  in  the  manner 
herein  provided  for  the  sale  or  lease  of  real  estate.1 


( 1 )     Forms.  —  See    notes    and  at  one  time,  so  that  the  estimated 

forms  under  §  24,  supra.  value  of  the  part  sold  will  be  less 

Sale    by    piecemeal.  —  As    to  than  $500,  see  Lancaster  v.  Miller, 

whether  division  into  parts  may  be  58  O.  S.  558,  573. 
made  of  personal  property  to  be  sold 


Sec.  25a.  [Sale  of  refuse,  street  sweepings,  etc. ;  disposition 
of  money  arising  therefrom.]  Any  refuse,  street  scrapings,  or 
ashes  not  necessary  for  the  improvement  of  municipal  property, 
and  other  personal  property  in  charge  of  the  street  cleaning 
department  no  longer  necessary  for  the  purposes  of  said  de- 
partment shall  be  sold,  in  the  manner  provided  by  law  for  the 
sale  of  other  personal  property,  by  the  board  or  officer  having 
the  supervision  or  management  of  the  said  department.  The 
money  arising  from  such  sale  shall  be  deposited  in  the  treasury 
in  the  street  cleaning  fund  and  shall  be  immediately  available, 
in  addition  to  any  appropriation  by  council,  for  the  current  ex- 
penses of  the  street  cleaning  department,  and  may  be  with- 
drawn from  the  treasury  upon  the  warrant  of  the  city  auditor 
for  said  purpose.  Said  money  shall  not  be  considered  a  source 
of  revenue  subject  to  appropriation  by  council,  and  may  be 
expended  as  herein  provided  without  having  been  appropri- 
ated bv  council.     [1906,  March  7,  98  v.  43.] 


Code  §§  26,  27]  sale  oe  lease  of  property.  109 

Sec.  26.  [Disposition  of  money  arising  from  sale  or  lease  of 
corporate  property.]1  The  money  arising  from  the  sale  or  lease 
of  any  real  estate,  or  public  building,  or  from  the  sale  of  any 
personal  property  belonging  to  the  corporation  shall  be  de- 
posited in  the  treasury  in  the  particular  fund  by  which  such 
property  was  acquired,  or  is  maintained,  if  there  be  such  fund, 
and  if  there  be  no  such  fund  then  it  shall  be  deposited  in  the 
general  fund;  provided,  however,  that  where  such  property 
was  acquired  by  an  issue  of  bonds  the  whole  or  any  part  of 
which  issue  is  still  outstanding,  unpaid  and  unprovided  for, 
then  such  money,  after  deducting  therefrom  the  cost  of  main- 
tenance and  administration  of  such  property,  shall  on  warrant 
of  the  city  auditor  be  transferred  to  the  trustees  of  the  sinking 
fund  to  be  applied  in  the  payment  of  the  principal  of  said  bond 
issue.      ["1904,  April  27,  97  v.  516.] 

(1)    Old  section  2674  R.  S.  repealed. 

Sec.  27.  [Statutes  re-enacted.]  In  the  sale,  exchange  or 
transfer  of  the  property  herein  described  §§  2675-1,  2675-2, 
2675-3,  2675-4,1  2675-6,  2675-7,  2675-8  and  2675-9,  of  the 
Revised  Statutes  of  Ohio  shall  be  and  remain  in  full  force  and 
effect. 

01)  §    2675-5    was   a    special    act  and  is  repealed. 

Sec.  2675 — 1  R.  S.  [Exchange  of  lots  for  school  purposes  au- 
thorized.] §  1.  In  any  and  all  cases  when  any  lot  or  lots  of 
land  lying  within  the  limits  of  any  town  or  village  shall  have 
been  dedicated,  given,  or  granted  to  such  town  or  village,  and 
set  apart  for  the  use  and  support  of  schools,  it  shall  be  compe- 
tent for  the  several  Courts  of  Common  Pleas  of  this  state,  on 
application  of  the  mayor  or  council  of  any  village,  where  such 
lot  or  lots  are  situate,  to  authorize  an  exchange  of  such  lot  or 
lots  for  such  other  lot  or  lots  within  the  limits  of  such  village  as 
the  interest  of  the  schools  therein  may  seem  to  require.     And 


110  THE    OHIO    MUNICIPAL    CODE.  [Code    §    27 

all  lots  taken  in  exchange  as  aforesaid,  shall  be  held  for  the 
same  purposes  and  subject  to  the  same  conditions  as  the  original 
lots  dedicated,  given  or  granted  to  said  town  or  village  for  the 
use  and  support  of  schools.      [70  v.  193.] 

Sec.  2675— 2  R.  S.     [Terms     of     application     for     exchange.] 

§  2.  That  every  application  for  an  exchange  of  lots  as  afore- 
said, shall  be  by  petition  verified  by  the  mayor,  and  the  board 
of  education  of  said  town  or  village  shall  be  made  a  party  de- 
fendant, and  such  other  persons  as  the  court  may  order,  and 
shall  set  forth  an  accurate  description  of  each  and  all  lots  pro- 
posed to  be  given  or  taken  in  exchange,  and  shall  set  forth  the 
specific  circumstances  which  render  such  exchange  necessary, 
and  a  prayer  for  such  order  as  may  be  required.      [70  v.  193.] 

Sec.  2675—3  R.  S.  [Notice  thereof  to  be  published.]  §  3. 
That  notice  of  the  filing,  pendency,  and  prayer  of  such  petition 
shall  be  published  for  four  consecutive  weeks,  prior  to  the  day 
of  hearing,  in  some  newspaper  printed  in  such  village,  if  there 
be  any  printed  therein,  and  if  there  be  not,  in  some  newspaper 
printed  in  the  county,  and  of  general  circulation  in  such  village. 
[70  v.  193.] 

Sec.  2675 — 4R.  S.     [Consummation  of  the  exchange.]         §  4C 

If  upon  the  hearing  of  such  petition  it  shall  appear  to  the  court 
that  notice  of  the  filing,  pendency,  and  prayer  of  such  petition 
has  been  given  as  hereinbefore  required,  and  that  such  an 
exchange  of  lots  is  necessary  and  will  promote  the  interests  of 
schools  in  such  village,  and  that  such  an  order  would  not  be  in- 
consistent with  the  terms  and  conditions  of  the  original  grant 
or  devise,  then  the  court  shall  authorize  such  exchange  to  be 
made,  and  order  the  mayor  of  such  village  to  execute  and  deliv- 
er such  deed  or  deeds  in  fee  simple  as  may  be  necessary  to  effect 
such  exchange.      [70  v.  193.] 

Sec.  2675 — 6  R.  S.  [Who  may  sell  railroad  stocks  owned  by 
county,  city,  or  township.]  §  25.  The  commissioners  of  any 
county,  the  city  or  town  council  of  any  c£ty  or  town,  and  the 
trustees  of  any  township,  which  county,  city,  town  or  township 
has  heretofore  subscribed  to  the  capital  stock  of  any  railroad 
company,  or  turnpike  or  plank-road  company,  and  has  issued, 
or  shall  hereafter  issue  any  bonds  for  the  payment  of  such 
subscription,  are  hereby  authorized  to  sell  the  said  stock,  or 
any  part  thereof,  and  on  such  terms  as  they  shall  deem  to  be  for 
the  interest  of  said  county,  city,  town  or  township,  respectively, 
and  may  apply  the  proceeds  of  such  sale  to  the  payment  of  the 
bonds  of  such  county,  city,  town  or  township,  respectively  sub- 


Code  §  27]         sale  or  lease  of  property.  Ill 

scribed;  provided,  that  the  commissioners  of  any  county;  the 
city  or  town  council  of  any  city  or  town,  and  the  trustees  of 
any  township,  which  has  paid  in  full  its  subscriptions  to  such 
railroad  or  turnpike  or  plank-road  company,  shall  be  authorized 
to  sell  the  stock  of  the  same  in  such  railroad  company,  or  turn- 
pike or  plank-road  company,  on  such  terms  as  they  shall  deem  to 
be  for  the  interest  of  said  county,  city,  town  or  township  respec- 
tively, and  place  the  proceeds  of  such  sale  to  the  credit  of  the 
general  fund  of  such  county,  city,  town  or  township.  [1867, 
April  16:  64  v.  234;  50  v.  274.] 

Sec.  2675 — 7  R.  S.  [How  proceeds  of  sale  of  stocks  owned  by 
city,  county,  or  town  applied.]  §  1.  Whenever  the  commis- 
sioners of  any  county,  the  proper  authorities  of  any  city,  or 
town,  or  the  trustees  of  any  township,  shall  sell  stock  of  any 
railroad,  turnpike,  or  plank-road  company,  under  the  provisions 
of  the  act  to  which  this  act  is  supplementary,  they  shall  apply 
the  proceeds  of  said  sale  to  the  payment  of  the  bonds  issued  to 
said  railroad,  turnpike,  or  plank-road  company,  for  said  stock 
so  sold  as  aforesaid,  if  said  bonds  can  be  obtained  at  par.  [60 
v.  53.] 

Sec.  2675—8  R.  S.  [Same.]  §  2.  If  said  bonds  can  not  be 
redeemed  at  par,  said  authorities  so  selling  the  stock  as  afore- 
said, shall  invest  said  money  in  the  bonds  and  stocks  of  the 
United  States,  or  of  this  state,  or  upon  bond  and  mortgage  upon 
unencumbered  real  estate,  held  in  fee  simple  in  said  county ;  and 
said  loan  not  to  exceed  one-half  of  the  appraised  value  of  the 
property  so  mortgaged,  to  be  held  as  a  fund  for  the  payment  of 
the  bonds  given  for  said  stock,  when  the  same  shall  mature,  or 
can  be  paid  and  discharged  at  their  par  value ;  the  principal  and 
interest  of  all  money  so  invested  shall  be  held  exclusively  as  a 
fund  for  the  payment  of  the  principal  and  interest  of  the  bonds 
so  given  for  the  stock  so  sold,  and  shall  be  applicable  to  no  other 
purpose  until  said  indebtedness  shall  be  fully  paid.      [60  v.  53.] 

Sec.  2675 — 9  R.  S.  [Counties,  townships,  and  municipalities 
authorized  to  sell  stocks  owned  in  private  corporations.]  §  1. 

The  trustees  of  any  township,  city  councils  and  county  commis- 
sioners are  hereby  authorized  and  empowered  to  sell  and  dispose 
of  any  railroad  stocks,  plank-road  stock,  and  turnpike  stock, 
owned  by  said  township,  municipal  corporations  or  county,  at 
public  or  private  sale,  as  they  may  deem  best,  and  pay  the  pro- 
ceeds arising  from  the  sale  thereof  into  the  treasury  of  said 
township,  municipality  or  county,  to  the  credit  of  the  general 
fund  thereof.      [85  v.  143.] 


112 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    28 


Third.     Streets  and  Their  Use. 

(a)     Control  of  Streets. 

Sec.  28.  [Council  to  have  control  of  streets,  etc.]1  In  all  mu- 
nicipal corporations  council  shall  have  the  care,  supervision 
and  control  of  public  highways,  streets,  avenues,  alleys,  side- 
walks, public  grounds,  bridges,  aqueducts  and  viaducts  within 
the  corporation,  and  shall  cause  the  same  to  be  kept  open  and  in 
repair  and  free  from  nuisance ;  2  and  with  respect  to  the  dedica- 
tion, opening  and  vacation  of  streets,  as  well  as  labor  upon  them, 
sections  2642,  2643,  2644,  2645,  2646,  2647,  2648,  2649, 
2649-1,  2649-2,  2649-3,  2650,  2651,  2652,  2653,  2654,  2655, 
2656,  2657,  2660,  2661,  2662,  2664,  2664-1,  2664-2,  2664-3, 
2664-4,  2664-5,  2664-6,  2664-7,  2664-8,  2664-9,  2664-10, 
2664-11,  2664-12,  2664-13  and  2664-14  shall  be  and  remain  in 
full  force  and  effect. 


(1)  Old  section  2640  R.  S.   (re- 
pealed.) 

(2)  Scope    of    words    used. — 

Highway  is  a  generic  name  and 
means  a  thoroughfare  open  to  all 
people.  Sullivan  v.  Columbus,  12 
Dec.  650. 

Roads  in  municipal  limits. — 
Public  highways  over  which  council 
has  control,  would  include  part  of 
pike  within  limits  of  municipality, 
although  county  commissioners  may 
also  have  power  to  improve  this 
part.  Commissioners  v.  State,  50 
O.  S.  653,  658;  and  the  commission- 
ers would  have  this  power  under, 
the  two-mile-pike  act.  Lewis  v^ 
Laylin,  46  O.  S.  663;  see  also  State 
▼.  Craig,  22  C.  C.  135;  State  ex  rel 
v.  Lewis,  13  Dec.  188. 

These  terms  would   also    includr 
*   public  roadway   connecting  with 


streets  of  a  city,  coming  within 
limits  of  a  municipality  as  part  of 
territory  annexed,  if  it  continues 
to  be  used  as  a  street,  although 
never  accepted  and  confirmed  by 
ordinance.  Steubenville  v.  King,  23 
O.  S.  610;  and  generally  roads 
brought  within  a  city  by  annexa- 
tion would  be  included.  R.  R.  Co. 
jr.  Defiance,  10  C.  C.  27,  32;  52  O. 
S.  262 ;  C.  C.  &  W.  Tp.  Co.  v.  Trac- 
tion Co.,  15  Dec.  118;  2  N.  P.  (N. 
S.)    237. 

Where  under  statutes  in  force 
in  1868  contiguous  territory  was 
attached  to  a  municipal  corporation 
for  road  purposes,  it  was  held  the 

i  municipal  street  commissioner 
might  enter  upon  and  take  mate- 
rials for  road  repair  from  lands 
near  such  road  but  not  in  the  same 

,road   district.     Burrows  v.  Cosier, 
33  O.  S.  567. 
Bridges,      etc.,      constructed      by 


Code  §  28] 


STREETS.       CONTROL   BY    COUNCIL. 


113 


county. — "Bridges,  viaducts,  etc.," 
would  include  a  bridge  constructed 
by  county  commissioners  within  lim- 
its of  a  municipality.  Newark  v. 
McDowell,  16  C.  C.  556. 

And  this  is  true,  even  though  the 
municipality  was  not  entitled  to  re- 
ceive any  part  of  the  bridge  fund 
levied  therein.  Piqua  v.  Geist,  59 
O.  S.  163;  and  though  the  county 
had  no  authority  to  construct  the 
bridge.  Newark  v.  Jones,  16  C.  C. 
563. 

They  would  include  a  viaduct  con- 
structed by  county  commissioners 
within  a  city,  under  statute  author- 
izing such  construction.  State  ex 
rel.  v.  Cincinnati,  4  N.  P.  313. 

As  to  the  power  of  county  commis- 
sioners over  bridges  within  the  lim- 
its of  municipalities,  see  Com'rs  v. 
Ry.  Co.,  45  O.  B.  401;  State  v. 
Com'rs,  49  O.  S.  301,  304;  Jones  v. 
Franklin  Co.,  25  C.  C.  510. 

The  general  provision  of  old 
§  2640  R.  S.  was  held  to  be  qualified 
by  §  860  R.  S.,  which  required  coun- 
ty commissioners  to  keep  in  repair 
bridges  except  those  wholly  within 
the  municipality  where  such  munic- 
ipality had  the  right  to  receive  a 
portion  of  the  bridge  taxes  levied 
therein  and  also  by  §  4938  R.  S., 
which  imposed  upon  the  commission- 
ers the  repair  of  bridges  in  cities  not 
having  a  right  to  receive  a  part  of 
the  bridge  fund  levied  therein.  Day- 
ton v.  Harmon,  12  C  D.  574.  See 
also  State  ex  rel.  v.  Carlisle,  15  Dec. 
165;  2  N.  P.   (N.  S.)  627. 

Street  defined. — A  street  over 
which  council  has  control,  includes 
the  surface  with  so  much  of  what 
underlies  it  as  is  requisite  for  all 
street  uses  known  to  the  period  in 
which  the  street  is  occupied,  not 
merely  for  travel,  but  for  sewerage, 
gas  pipes,  etc.,  within  whatever 
depth  is  necessary  and  proper,  and 
as    much    of    the    space    above    the 


street  as  is  necessary  for  the  proper 
use  of  the  street  as  a  highway. 
Henry  v.  Cincinnati,  25  C.  C.  178; 
1  C.  C.   (N.  S.)   289. 

Land  under  city  bridge  used  by 
the  city  as  support  for  abutments  of 
the  bridge,  which  the  city  had  not 
invited  the  public  to  use  as  a  high- 
way, and  which  was  not  adapted  for 
that  purpose,  is  in  no  sense  a  public 
street,  and  city  may  lease  such  prop- 
erty for  any  purpose  not  inconsis- 
tent with  its  use  as  a  support  for 
the  bridge.  Ricard  Boiler  &  Engine 
Co.  v.  Toledo,  25  C.  C.  64. 

Character  of  municipality's 
title. — The  fee  of  the  streets  is  in 
the  municipality,  in  trust  for  street 
purposes.  St.  Ry.  v.  Cumminsville, 
14  O.  S.  523 ;  Columbus  v.  Agler,  44 
O.  S.  485;  Callen  v.  Elec.  Light  Co., 
66  O.  S.  166 ;  Ham.  G.  &  C.  Traction 
Co.  v.  Parrish,  67  O.  S.  181,  190; 
Butler  v.  Cincinnati,  2  C.  C.  (N.  S.) 
377 ;  Wenzel  v.  St.  Ry.  Co.,  14  N.  P. 
126;  but  see  Henry  v.  Cincinnati,  1 
C.  C.  (N.  S.)  289;  25  C.  C.  178. 
And  this  is  true,  although  the  street 
became  such  by  annexation  of  terri- 
tory embracing  a  county  road.  Ak- 
ron &  C.  F,  Rapid  Transit  Co.  v. 
Erie  Ry.,  28  C.  C.  36;  7  C.  C.  (N. 
S.)    199. 

The  municipal  corporation  is  an 
agent  of  the  state  in  the  preserva- 
tion of  public  rights  in  the  streets 
and  its  ownership  is  of  the  fee  sub- 
ject to  the  right  of  the  state  to  di- 
rect the  mode  of  administering  such 
trust  and  of  keeping  the  streets  in 
repair  and  free  from  nuisance.  Ray- 
nolds  v.  Cleveland,  2  C.  C.  (N.  S.) 
139;  24  C.  C.  215. 

Acquisition  from  state.  —  The 
transfer  to  a  city  for  street  pur- 
poses, by  the  state,  of  property  ac- 
quired for  canal  purposes,  gives  the 
control  to  the  city  without  making 
a  reversion  in  favor  of  the  owner  of 
the  soil.  Malone  v.  Toledo,  28  O.  S. 
643. 

Compensation  for  use  of 
streets. — Revenues  for  the  use  of 
the  streets  by  vehicles  in  general  is 
held  to  be  a  license  fee  for  the  spe- 


114 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    28 


cial  burden  imposed  and  not  a  tax 
upon  property.  Marmet  v.  State,  45 
O.  S.  63,  68. 

Under  the  statute,  §  3461  R.  S., 
providing  for  the  use  of  streets  by  a 
telegraph  or  telephone  company,  it 
was  held  that  "  a  municipal  corpora- 
tion, though  holding  the  title  to  its 
streets,  has  no  private  proprietary 
interest  in  them  which  entitles  it  to 
compensation  when  they  are  subject- 
ed to  an  authorized  additional  pub- 
lic burden  by  the  construction  of  a 
telephone  line  therein.  But  being 
charged  with  the  duty  of  keeping  the 
streets  under  its  control  in  repair,  it 
may  be  allowed  compensation  to  an 
amount  sufficient  to  make  the  re- 
pairs rendered  necessary  by  such 
additional  use."  Zanesville  v.  Tele- 
graph and  Telephone  Co.,  64  O.  S. 
67,  81. 

As  to  right  to  exact  a  revenue 
from  gas  company  using  the  streets, 
see  Columbus  v.  Columbus  Gas  Co., 
15  Dec.  645;  3  N.  P.  (N.  S.)  293. 

As  to  revenue  from  use  of  streets 
by  street  railways,  see  Cincinnati  St. 
Ry.  Co.  v.  Smith,,  29  O.  S.  291,  306. 
Power  of  council  over  use  of 
streets. — The  power  is  limited  only 
by  the  rule  that  it  holds  the  streets 
in  trust  for  the  public  for  purposes 
of  travel.  Ry.  Co.  v.  Elyria,  14  C. 
C.  48;  Transit  Co.  v.  Hamilton,  1 
N.  P.  366. 

It  may  authorize  any  use  of  a 
street  not  subversive  of  or  impair- 
ing the  original  use,  but  the  rights 
of  the  public  to  use  it  as  a  street, 
and  of  the  adjacent  lot  owner  to 
enjoy  it  as  a  means  of  access  to  his 
property,  must  not  be  materially  in- 
terfered with.  Branahan  v.  Hotel 
Co.,  39  O.  S.  333. 

Council  has  discretion  as  to  the 
manner  in  which  streets  shall  be 
used,  and  this  power  cannot  be  ju- 
dicially interfered  with  unless  a 
manifest  invasion  of  private  rights 
is  shown.  Mill  Creek  Valley  R.  R. 
Co.  v.  St.  Bernard,  8  N.  P.  288,  294. 
Council  may  provide  by  ordinance 
that  all  drivers  shall  keep  to  the 
right  in  passing  over  bridges  with- 
in municipal  limits.  Piatt  v.  To- 
ledo, 6  C.  C.    (N.  S.)  403. 

It  may  by  ordinance  prohibit  sales 


at  auction  in  the  streets,  and  such 
ordinance  would  not  be  unreasonable 
nor  in  restraint  of  trade.  White  v. 
Kent,  11  0.  S.  550. 

It  may  summarily  abate  a  nuis- 
ance erected  upon  a  public  street 
which  interferes  with  the  free  use  of 
the  street  by  the  public.  Evans  v. 
Cincinnati,  2  Handy,  236. 

But  hedges,  shrubs,  and  herbage 
belong  to  the  owner  of  the  fee  and 
cannot  be  summarily  destroyed  un- 
less they  interfere  with  public  travel. 
Phifer  v.  Cox,  21  O.  S.  248. 

It  may  impose  upon  one  who  has 
been  granted  the  privilege  of  tempo- 
rarily obstructing  a  street  for  build- 
ing on  abutting  property  the  duty 
to  save  the  city  from  loss  and  trav- 
elers from  injury.  Reuben  v.  Swi- 
gart,   15  C.  C.  565. 

Municipality  may  grant  franchise 
to  street  railroad  to  use  a  bridge 
within  its  limits  although  the  bridge 
was  built  by  the  county.  State  ex 
rel.  v.  R.  R.  Co.,  19  C.  C.  79,  90. 

It  may  regulate  the  use  of  streets 
and  sidewalks  by  bicycles  and  pro- 
hibit riding  of  bicycles  on  sidewalks, 
as  well  as  fix  by  ordinance,  restric- 
tions on  speed,  use  of  bells,  lights, 
etc.  Thomas  v.  Fremont,  12  Dec. 
604.  Leading  or  pushing  a  bicycle  is 
not  within  prohibitive  words,  "  rid- 
ing, driving,  propelling,  or  operat- 
ing."    76. 

It  may  improve  and  ornament  a 
public  square  for  health,  public 
buildings  or  the  transaction  of  pub- 
lic business  of  the  people  or  for 
both  the  purposes  of  pleasure  and 
business  if  there  is  no  special  limi- 
tation or  use  described  by  the  dedi- 
cation. Langley  v.  Gallipolis,  2  O. 
S.  107. 

But  the  municipality  cannot  per- 
mit the  permanent  occupancy  of  the 
streets,  cutting  off  access  to  the 
property  of  abutting  lot  owners  for 


Code    §     28]        STREETS.        CONTROL    BY    COUNCIL. 


115 


the  convenience  and  benefit  of  a 
private  business.  Branahan  v.  Ho- 
tel Co.,  39  0.  S.  333. 

It  cannot  surrender  the  street  by 
permitting  encroachments  which  les- 
sen its  width.  L.  S.  &  M.  S.  Ry. 
Co.  v.  Elyria,  69  O.  S.  414. 

It  was  held  that  a  municipality 
cannot  change  the  name  of  a  street 
at  will,  without  good  cause,  except 
on  petition  of  abutting  property 
owners.  Miller  v.  Cincinnati  21  B. 
121. 

A  section  such  as  this  gives  the 
municipality  no  power  to  grant  to  a 
lighting  company  the  power  to  erect 
poles  in  the  street.  Brush  Co.  v. 
Jones  Bros.  Co.,  5  C.  C.  340,  341. 

The  power  to  improve  streets  in 
its  own  way,  is  not  limited  by  the 
voluntary  improvement  of  an  abut- 
ting proprietor  in  a  different  way. 
Parsons  v.  Columbus,  50  O.  S.  460; 
nor  by  an  improvement  of  a  street 
which  is  part  of  a  road  within  the 
municipality,  by  a  county,  having 
this  authority.  Mills  v.  Norwood, 
6  C.  C.  305,  308. 

The  general  authority  of  council 
over  the  streets,  duly  exercised,  will 
override  any  license  by  which  the 
control  of  the  street  has  been  sur- 
rendered to  a  company  or  individual. 
Railroad  Company  v.  Defiance,  10  O. 
F.  D.  480;  52  O.  S.  262. 

The  power  of  council  to  author- 
ize the  tearing  up  of  streets  by 
street  railway  company  or  sewer  con- 
tractor is  not  restricted  because  of 
a  previous  contract  with  the  con- 
struction company  to  keep  the  street 
which  the  company  has  made  in  re- 
pair. Union  Savings  Bank,  etc.,  Co. 
v.  Norwood,  12  Dec.  623. 

As  to  council's  power  over  con- 
struction of  sidewalks,  see  note  un- 
der §  70  of  the  Code. 

Exclusive  use. —  Council  is  with- 
out power  to  grant  exclusive  use  of 


its  streets,  unless  expressly  granted 
the  power.  State  ex  rel.  v.  Gas 
Light  &  Coke  Co.,  18  O.  S.  262 ;  Cin- 
cinnati Street  Railway  Co.  v.  Smith, 
29  O.  S.  291;  State  ex  rel.  v.  Co- 
lumbus Ry.  Co.,  24  C.  C.  609,  623. 
Perpetual  use  may  be  granted  if 
no  limitation  of  time  in  power  given 
to  municipality  by  legislature. 
State  ex  rel  v.  Columbus  Ry.  Co., 
24  C.  C.  609,  but  see  73  O.  S.  363. 

Use  granted  to  railroad.— 
Municipal  control. —  Though  a  mu- 
nicipality has  by  ordinance  author- 
ized a  railroad  company  to  lay 
tracks  in  a  street,  its  supervision  of, 
and  responsibility  for  the  street  con- 
tinues subject  only  to  the  use  of  the 
company  as  authorized.  Steuben- 
ville  v.  McGill,  41  O.  S.  235;  Cincin- 
nati v.  Kirchner,  13  Dec.  727 ;  Zanes- 
ville  v.  Fannan,  53  O.  S.  605 ;  Rail- 
road Co.  v.  Defiance,  52  O.  S.  262; 
167  U.  S.  88;  L.  S.  &  M.  S.  Ry.  Co. 
v.  Elyria,  69  O.  S.  414,  430.  A  mu- 
nicipality has  no  power  to  authorize 
permanent  obstruction  or  encroach- 
ment upon  the  street  which  excludes 
the  public  from  the  use  of  that  por- 
tion of  the  highway.  L.  S.  &  M.  S. 
Ry.  Co.  v.  Elyria,  69  O.  S.  414; 
Zanesville  v.  Fannan,  53  O.  S.«605; 
Railroad  Co.  v.  Defiance,  52  O.  S. 
262.  An  agreement  with  a  railroad 
company  for  an  obstruction  in  the 
street  that  excludes  the  public  can 
operate  only  as  a  license  until  public 
convenience  requires  its  removal.  L. 
S.  &  M.  S.  Ry.  Co.  v.  Elyria,  69  O. 
S.  414. 

Where  a  railroad  company  has  the 
duty  of  maintaining  a  bridge  as  part 
of  the  street,  and  of  keeping  it  in 
repair,  the  railroad  company  would 
have  the  same  right  as  the  munic- 
ipality to  close  the  bridge  when  it 
became  dangerous  to  public  travel. 
Toledo  Street  Ry.  Co.  v.  Mammet, 
13  C.  C.  591. 


115a 


THE   OHIO   MUNICIPAL    CODE. 


[Code  §28 


As  to  rights  of  abutting  owner  to 
enjoin  construction  of  railroad  when 
his  easement  in  street  is  interfered 
with,  see  "Abutting  Owner's 
Rights,"  infra. 

Municipal  liability. — The  duty  of 
keeping   the   streets    in    repair    and 
free  from  nuisance  not  being  taken 
away  by  a  grant  of  the  use  of  the 
street   to   a   railroad   company,   the 
municipality  is  liable  to  an  abutting 
owner  for  damages   caused   by  the 
railroad  company  to  abutting  prop- 
erty and  not  incidental  to  the  ordi- 
nary construction  of  a  railroad  in 
the  street,  notwithstanding  the  rail- 
road company  may  also  be  liable  to 
the  property   owner.     Zanesville  v. 
Fannan,  53  O.  8.  605.     But  see  Dil- 
lenbach  v.  Xenia,  41  O.  S.  207.   Thus 
a  municipality  was  held  liable  for 
obstruction  to  drainage  caused  by  a 
railroad     company.       Zanesville     v. 
Fannan,  53  O.  S.  605.     But  the  mu- 
nicipality is  not  liable  for  damages 
which  are  in  the  nature  of  compen- 
sation for  an  additional  burden  in 
the  street  arising  from  the  location 
or   construction    of    railroad   tracks 
therein.     Zanesville  v.    Fannan,   53 
O.  S.  605.     A  municipality  is  held 
liable   for   injury   caused  to  person 
falling  into  a  ditch  between  tracks 
of  railroad  in  the  street.     Steuben- 
ville  v.  McGill,  41  O.  S.  235. 

As  to  rights  of  abutting  owner 
against  railroad  company  for  dam- 
ages, see  note  2  under  §  3283  R.  S., 
page  683. 

As  to  the  statute  of  limitations  in 
case  of  encroachment  of  abutments 
of  a  steam  railroad  in  a  highway, 
see  L.  S.  &  M.  S.  Ry.  Co.  v.  Elyria, 
69  O.  S.  414,  435. 

What  uses  impose  additional 
burdens. — Sewers. — A  sewer  is  an 
authorized  use  of  a  street.     Elster 


v.  Springfield,  49  O.  8.  82;  Cincin- 
nati v.  Penny,  21  O.  8.  499. 

Grading. — Grading  and  changing 
of  grade  are  authorized  uses  of 
streets.  R.  R.  Co.  v.  Defiance,  52  O. 
B.  262,  300;  167  U.  8.  88;  East  End 
B.  &  C.  Co.  v.  Cleveland,  1  N.  P 
(N.  S.)    493. 

Street  railways  are  not  an  addi- 
tional burden  on  the  street,  see  note 
page  143. 

Electric  light  poles  and  wires  in 
the  streets  at  the  curb,  though  with 
the  consent  of  municipality,  have 
been  held  to  be  a  diversion  of  the 
street  from  the  purposes  for  which 
it  was  dedicated,  and  an  abutting 
owner  injured  thereby  has  been 
given  the  right  to  enjoin  the  same. 
Callen  v.  Electric  Light  Co.  66  O.  S 
166. 

Telephone  and  telegraph  poles 
have  been  held  an  interference  with 
abutting  owner's  easement.  Tan- 
nian  v.  Telegraph  Ass'n,  13  Dec. 
730;  1  N.  P.  (N.  S.)  81  (aff'd  71 
O.  S.  478)  ;  Daily  v.  State,  51  O.  S. 
348,  358,  364;  Mantell  v.  Telephone 
Co.  20  C.  C.  345;  but  see  Auerbach 
v.  Telephone  Co.  7  N.  P.  633;  Hayes 
v.  Telephone  Co.  21  C.  C.  480;  see 
further  Zanesville  v.  Telegraph  & 
Telephone  Co.  64  O.  S.  67,  82. 

Gas  pipes  laid  longitudinally  un- 
der sidewalk  have  been  held  an  addi- 
tional burden  on  the  street.  Federal 
Gas  &  Fuel  Co.  v.  Townsend,  14  Dec. 
5;  1  N.  P.  (N.  S.)  289;  Webb  v. 
Ohio  Gas  Fuel  Co.  16  B.  121. 

Conduits  for  telephone  and  tele- 
graph wires  are  additional  servitude. 
Burns  v.  Telephone  Co.  3  N.  P.  (N." 
S.)    257. 

Steam  railroads  are  an  additional 
burden  on  the  street,  see  note  "Abut- 
ting Owner's  Rights,"  infra. 

Abutting  owner's  rights. — An 
owner  of  a  lot  abutting  on  a  street 


Code  §.28] 


STREETS.       CONTROL    BY    COUNCIL. 


115b 


has  a  property  interest  in  the  street 
in  front  of  his  lot  which  cannot  be 
taken  except  after  payment  or  de- 
posit of  compensation.  Callen  v. 
Electric  Light  Co.,  66  O.  S.  166; 
Crawford  v.  Delaware,  7  O.  S.  459; 
Street   Ry.  v.   Cumminsville,   14   O. 

B.  523. 

An  abutting  owner  may  use  the 
space  above  or  below  the  surface  of 
the  street  in  any*  manner  permissible 
by  city  ordinance  where  such  use 
contravenes  no  right  of  the  city  to 
its  actual  use  for  street  and  mu- 
nicipal purposes.  Such  abutting 
owner  may  string  a  wire  above  the 
street  eighty  feet  above  the  surface. 
Henry  v.  Cincinnati,  1  C.  C.  (N.  S.) 
289;  25  C.  C.  178.  But  see  Butler 
v.  Cincinnati,  25  C.  C.  772. 

An  abutting  owner's  easement  in 
a  street  consists  not  only  in  having 
the  surface  free  and  unobstructed 
for  ingress  and  egress,  but  he  also 
has  the  right  to  light  and  air  above 
the  surface.  Lloyd  Booth  Co.  v. 
Mahoning  Co.,  12  C.  D.  706;  and  an 
obstruction  to  his  light  and  air  is 
an  infringement  on  his  easement  in 
the  street.  Hayes  v.  Telephone  Co., 
21  C.  C.  480.  So  an  erection  of  a 
viaduct  in  the  street  may  be  an  in- 
jury to  the  easement,  although  it 
does  not  materially  interfere  with 
the  surface  use  of  the  street.  Lloyd 
Booth  Co.  v.  Mahoning  Co.,  12  C.  D. 
706. 

Whether  abutting  owner's  ease- 
ment immediately  in  front  of  his 
lot  extends  only  to  center  of  street 
or  all  the  way  across  street,  see 
Smedes  v.  Railroad  Co.,  4  O.  L.  R. 
44;   Madden  v.  Railway  Co.,  21   C. 

C.  73  . 

An  abutting  owner's  right  to  have 
the  street  kept  open  and  free  from 
nuisance  may  be  barred  by  the  lapse 


of  time.  Kuhn  v.  Cleveland,  25  C. 
C.  272. 

Steam  railroads  in  street — In- 
junction.— An  abutting  owner  may 
enjoin  the  construction  of  a  rail- 
road until  the  right  to  construct 
such  road  shall  first  be  acquired. 
Railway  Co.  v.  Lawrence,  38  O.  S. 
41 ;  Toledo  Bending  Co.  v.  Railway, 
2  N.  P.  317;  Weber  v.  electric  Rail- 
way Co.,   13  Dec.   194. 

Even  after  ordinance  to  construct 
railroad  in  street  is  obtained,  an 
abutting  owner  may  enjoin  such 
construction  if  it  materially  inter- 
feres with  his  access  to  his  prop- 
erty, until  his  easement  is  properly 
appropriated  or  purchased.  Burial 
Case  Co.  v.  Railway  Co.,  24  C.  C. 
107;  4  C.  C.   (N.  S.)    365. 

Where  railroad  track  is  not  con- 
structed on  part  of  the  street  imme- 
diately in  front  of  plaintiff's  prop- 
erty, there  is  no  such  material  in- 
terference with  access  as  to  consti- 
tute the  taking  of  property  and  en- 
title the  owner  to  enjoin  the  con- 
struction, even  though  the  owner 
suffers  in  common  witn  the  public 
some  inconvenience  in  travel  along 
the  street.  Mitchell  Furniture  Co. 
v.  Railroad,  7  N.  P.  639  (aff'd  65 
O.  S.  571);  Herzog  v.  Railway,  25 

C.   C.   702    (aff'd   74   O.    S.   ); 

L,  &  N.  R.  R.  Co.  v.  C.  N.  O.  & 
T.  P.  Ry.  Co.,  3  N.  P.  (N.  S.)  109; 
see  also  Hatch  v.  R.  R.  Co.,  18  O. 
S.  92. 

But  where  the  railroad  obstructs 
the  only  means  of  access  to  his  prop- 
erty, even  though  the  track  is  not 
laid  immediately  in  front  of  his  lot, 
there  is  a  taking  of  property  rights 
and  the  construction  may  be  en- 
joined. Mitchell  Furniture  Co.  v. 
Railroad,  7  N.  P.  639  (aff'd  65  O.  S. 
571). 


115c 


THE   OHIO   MUNICIPAL   CODE. 


[Code  §  28 


A  railroad  trestla  in  the  street 
was  not  enjoined  where  the  street 
was  unimproved  and  far  below  the 
established  grade,  and  abutting 
owner  would  not  be  injured  in  fu- 
ture when  the  street  was  filled.  C. 
C.  C.  &  St.  L.  Ry.  Co.  v.  C.  &  I.  W. 
Ry.  15  Dee.  112;  2  N.  P.  (N.  S.) 
237. 

The  abutting  owner  cannot  enjoin 
because  the  municipality  might  have 
a  right  to  injunction.  The  munic- 
ipality's rights  cannot  be  worked  out 
through  an  abutting  owner,  and 
viae  versa.  C.  C.  C.  &  St.  L.  Ry. 
Co.  v.  C.  &  I.  W.  Ry.  Co.,  15  Dec. 
112;  2  N.  P.   (N.  S.)  237 

As  to  right  of  abutting  owner  to 
damages  from  railroad  company,  for 
injuries  due  to  construction  of  rail- 
road in  street,  see  §  3283  R  S.  and 
note    (2)    thereunder,  p.  683. 

Street  railways. — As  to  rights  of 
abutting  owner  where  street  railway 
is  constructed  in  street,  see  generally 
title  "Street  Railways,"  page  142 
et  seq. 

City  and  county  highway — dis- 
tinction.— Owner  of  land  abutting 
on  country  highway  has  fee  to  the 
center  of  highway  and  public  has 
easement,  while  owner  of  land  abut- 
ting on  city  street  has  easement 
and  public  owns  the  fee,  but  in 
each  situation  the  respective  rights 
are  substantially  the  same.  Callen 
v.  Electric  Light  Co.,  66  O.  S.  166. 

Damages  for  injury  caused  by  im- 
provements.— As  to  owner's  rights 
for  damages  to  his  property  caused 
by  improvements,  see  §  54  of  the 
Code  and  notes. 

No  extraordinary  use  without 
consent  of  council. — The  care, 
supervision  and  control  over  streets 
and  highways  having  been  given  to 


council,  none  of  these  can  be  used 
for  extraordinary  purposes  without 
the  consent  of  council.  Illuminating 
Co.  v.  Mt.  Gilead,  8  N.  P.  669. 

But  temporary  obstructions  in 
streets,  such  as  are  occasioned  in 
rebuilding  and  repairing  houses,  are 
not  prohibited  and  do  not  require 
special  license.  Clark  v.  Fry,  8  O. 
S.  358;  Columbus  v.  Penrod,  73  O. 
S.  209;  although  cduncil  can  regu- 
late them,  lb.;  and  can  impose  the 
duty  to  save  the  city  from  loss  and 
travelers  from  injury.  Reuben  v. 
Swigart,  15  C.  C.  565. 

Council  is  the  only  authority  to 
give  consent  to  the  use  of  streets, 
and  a  direction  assumed  to  be  given 
by  the  mayor,  without  authority  of 
council,  is  inoperative.  Ry.  Co.  v. 
Carthage,  36  O.  S.  631. 

Where  an  ordinance  grants  to  a 
gas  company  the  right  to  lay  its 
pipes  in  the  streets,  no  special  per- 
mit from  the  municipal  authorities 
could  be  required.  Defiance  v.  Gas 
and  Electric  Co.,  12  Dec.  424.  Such 
a  right  cannot  be  revoked  by  the 
municipal  authorities,  and  it  in- 
cludes the  right  to  repair  and  ex- 
tend the  pipes.    lb. 

As  to  powers  of  board  of  public 
service  over  streets,  see  §  140  and 
notes. 

Remedy. — Obstructions  in  streets 
and  highways  constitute  a  nuisance 
and  full  power  is  conferred  upon 
the  State,  by  its  attorney  general, 
on  his  own  behalf  or  on  behalf  of  a 
party  in  interest,  to  invoke  the  equi- 
ty powers  of  a  court  to  have  such 
obstructions  removed.  Trumbull 
County  v.  Pennsylvania  Co.,  24  C.  C. 
550.  See  also  Little  Miami  Ry.  Co. 
v.  Greene  Co.,  31  O.  S.  338;  State  v. 
Railway  Co.,  36  O.  S.  434. 


Code  §  28] 


STREETS.      CONTROL  BY   COUNCIL. 


116 


Adverse    possession.  —  It    has 

been  held  that  a  municipality's 
rights  in  a  street  or  public  square 
may  be  lost  by  adverse  possession 
by  a  private  individual  for  more 
than  twenty-one  years  where  the 
possession  is  by  a  building  or  other 
permanent  and  substantial  struc- 
ture. Cincinnati  v.  Presbyterian 
Church,  8  0.  298;  Cincinnati  v. 
Evans,  5  O.  B.  594;  Williams  v. 
Presbyterian  Society,  1  O.  S.  478, 
510;  Lane  v.  Kennedy,  13  O.  S.  42, 
46;  McClelland  v.  Miller,  28  O.  S. 
488,  502;  Seese  v.  Maumee,  7  C.  C. 
(N.  S.)  497.  See  also  Cincinnati 
v.  Columbia,  17  B.  192;  Railroad 
Co.  v,  Hambleton,  40  O.  S.  496. 

But  the  erection  of  fences,  plant- 
ing of  shade  trees  and  like  occupa- 
tion of  a  part  or  all  of  a  public 
street  do  not  constitute  such  adverse 
possession  as  to  bar  the  municipal- 
ity. Lane  v.  Kennedy,  13  O.  S.  42 ; 
McClelland  v.  Miller,  28  O.  S.  488; 
Heddleston  v.  Hendricks,  52  O.  S. 
465;  Sullivan  v.  Columbus,  12  Dec. 
650;  Ashley  v.  Toledo,  13  C.  C.  9. 

But,  as  to  the  case  where  fences 
and  like  unsubstantial  structures 
exclude  the  public  from  the  entire 
street,  see  Mott  v.  Toledo,  17  C.  C. 
472;  Seese  v.  Maumee,  7  C.  C.  (N. 
S.)  497  (holding  there  is  a  distinc- 
tion between  encroachment  on  part 
of  a  street  and  entire  occupation  of 
streot). 

On  the  other  hand,  it  has  been 
held  that  since  the  encroachment  on 
a  public  street  by  a  permanent  or 
other  structure  is  a  public  nuisance, 
no  right  by  adverse  possession  can 
be  acquired  by  such  an  obstruction. 
Elster  v.  Springfield,  49  O.  S.  82, 
98 ;  Wright  v.  Oberlin,  23  C.  C.  509 ; 
Heddleston  v.  Hendricks,  52  O.  S. 
465;  By.  Co.  v.  Elyria,  69  O.  S. 
414;  Sullivan  v.  Columbus,  12  Dec. 
650;  Lawrence  Railroad  Co.  v.  Com- 


missioners, 35  O.  S.  8;  Railroad  Co. 
v.  Commissioners,  31  O.  S.  338,  349. 
And  whatever  right  against  the  mu- 
nicipality may  be  acquired  by  the 
encroachment  upon  the  street  with  a 
permanent  structure  has  been  placed 
upon  the  ground  of  equitable  estop- 
pel of  the  municipality.  Lane  v. 
Kennedy,  13  O.  S.  42,  46;  Elster  v. 
Springfield,  49  O.  S.  82,  98 ;  Wright 
v.  Oberlin,  23  C.  C.  509;  Sullivan 
v..  Columbus,  12  Dec.  650;  Win- 
slow  v.  Cincinnati,  6  N.  P.  47;  and 
see:  Mondle  v.  Toledo  Plow  Co.,  6 
N.  P.  294;  Lane  v.  Kennedy,  13  O. 
S.  42;  Mooren  v.  Cleveland,  15  Dec. 
456. 

By  section  6921  R.  S.  the  obstruc- 
tion of  any  public  ground,  highway, 
street  or  alley  of  a  municipality  by 
fences,  buildings,  structures  or  oth- 
erwise is  made  an  indictable  nuis- 
ance. 

Streets  not  opened  and  used. — By 
section  4977  R.  S.  the  whole  or  any 
part  of  streets  which  have  been  ded- 
icated, but  not  opened  or  used  by  the 
public,  may  be  lost  by  the  municipal- 
ity to  abutting  owner  if  fenced  in 
and  held  for  twenty-one  years.  See 
also  Stevens  v,  Shannon,  6  C.  C. 
142;  Seese  v.  Maumee,  7  C.  C.  (N. 
S.)   497. 

Abandonment.  —  Municipality 
may  lose  its  control  over  streets  by 
abandonment.  State  v.  Railway  Co., 
53  O.  S.  189.  But  abandonment  of 
part  of  a  street  will  not  work  an 
abandonment  of  all.  Cincinnati  v. 
Kirchner,  13  Dec.  727;  1  N.  P.  (N. 
S.)   93. 

Municipal  liability  —  General 
principles. — The  rule  of  municipal 
liability  would  seem  to  be  that  the 
municipality  is  not  liable  for  the 
unlawful  use  of  its  streets,  but  is 
liable  for  any  defects  m  their  state 
or  condition.  Custer  v.  New  Phila- 
delphia, 20  C.  C.  177.  And  it  is  not 


117 


THE   OHIO    MUNICIPAL   CODE. 


[Code  §  28 


liable  for  failure  to  prevent  a  use 
of  the  streets  by  neglect  to  pass 
proper  ordinances,  or  otherwise.    lb. 

In  exercising  care  and  control 
over  the  streets  the  municipality 
acts  as  the  agent  of  the  State  and 
is  exempt  from  liability  for  failure 
or  neglect  to  perform  duties  in  that 
respect.  Robinson  v.  Greenville,  42 
O.  S.  625;  Custer  v.  New  Philadel- 
phia, 20  C.  C.  177;  Zanesville  v. 
Fannan,  53  O.  S.  605;  Wilhelm  v. 
Defiance,  58  O.  S.  56,  65. 

Thus  a  municipality  is  not  liable 
for  injury  caused  by  fast  riding  of 
bicycles  on  its  sidewalks  because  it 
has  not  forbidden  the  same  by  ordi- 
nance or  otherwise.  Custer  v.  New 
Philadelphia,  20  C.  C.  177. 

It  is  not  liable  for  injury  caused 
by  disorderly  persons  discharging  a 
cannon  for  several  hours  in  the 
street.  Robinson  v.  Greenville,  42 
O.  S.  625. 

But  the  provision  requiring  the 
municipality  to  keep  the  streets 
open  and  in  repair  and  free  from 
nuisance  implies  a  duty  for  the 
breach  of  which,  to  the  injury  of 
any  one,  the  municipality  is  liable. 
See  Cleveland  v.  King,  132  U.  S. 
295,  302;  Cardington  v.  Admr.  of 
Fredericks,  46  O.  S.  442,  447 ;  Zanes- 
ville v.  Fannan,  53  O.  S.  605;  Wil- 
helm v.  Defiance,  58  O.  S.  56,  65; 
Herrick  v.  Cleveland,  7  C.  C.  470; 
Kleister  v.  Dayton,  Ohio  Dec.  (Day- 
ton) 215;  and  it  is  liable  even 
though  the  defect  or  obstruction 
arose  from  construction  in  accord- 
ance with  plans  for  improvement 
adopted  by  municipal  authorities. 
Circleville  v.  Sohn,  59  (X  S.  285. 

When  the  corporation  is  perform- 
ing this  duty  it  is  aeting  in  its  pro- 
prietary capacity  and  its  liability  is 
largely,  if  not  entirely,  measured  by 
the  liability  of  an  individual  for  sim- 
ilar acts.  Robinson  v.  Greenville, 
42  O.  S.  625. 

The  law  exacts  from  the  munic- 
ipality, however,  only  what  is  prac- 
ticable and  reasonable  in  regard  to 
keeping  its  streets  open  and  in  re- 


pair and  free  from  nuisance.  Chase 
v.  Cleveland,  44  O.  S.  505,  515;  Van 
Dyke  v.  Cincinnati,  1  Disney  532; 
and  it  is  not  bound  to  anticipate  im- 
probable and  unprecedented  events, 
and  provide  against  their  possible 
results.  Village  v.  Kallager,  52  O. 
S.  183;  Fremont  v.  Dunlap,  69  O.  S. 
286. 

It  is  only  required  to  keep  the 
streets  in  such  condition  that  a  per- 
son exercising  ordinary  care  in  pass- 
ing over  them,  may  be  reasonably 
safe  from  injury  arising  from  their 
condition.  Durbin  v.  Napoleon,  21 
C.  C.  160. 

Where  a  bridge  or  street  is  in  a 
reasonably  safe  condition  for  travel 
in  the  ordinary  mode,  it  is  free  from 
nuisance.  Cardington  v.  Fredericks, 
Admr.,  46  O.  S.  442;  Zanesville  v. 
Fannan,  53  O.  S.  605;  Cincinnati  v. 
Sohn,  59  O.  S.  285;  Cincinnati  v. 
Fleischer,  Admr.,  63  O.  S.  229 ;  Troy 
v.  Brady,  67  O.  S.  65.  Municipality 
is  not  liable  as  an  insurer  of  those 
who  go  upon  the  streets.     lb. 

But  the  liability  of  the  municipal- 
ity is  not  affected  by  the  fact  that 
the  person  who  caused  the  nuisance 
which  resulted  in  injury,  is  respon- 
sible over  to  the  municipality. 
Zanesville  v.  Fannan,  53  O.  S.  605; 
nor  by  the  fact  that  the  statutes 
give  a  remedy  to  the  person  injured 
against  the  one  directly  causing  the 
injury.     lb. 

In  what  cases  liable. — Gener- 
ally.—  A  municipality  by  allowing 
a  street  to  become  dangerous  main- 
tains a  nuisance  and  is  liable  for 
personal  injury  caused  thereby. 
Cardington  v.  Admr.  of  Fredericks, 
46  O.  S.  442. 

A  municipality  is  not  liable  in 
the  ordinary  case  for  injury  caused 
by  falling  on  slippery  sidewalk 
where  snow  and  ice  had  been  allowed 
to  accumulate,  for  it  is  not  the  duty 
of  the  municipality  to  remove  im- 
mediately all  snow  and  ice  from 
sidewalks  in  all  parts  of  the  city. 
Chase  v.  Cleveland,  44  O.  S.  505; 
Stamberger  v.  Cleveland,  22  C.  C. 
65;  Van  Dyke  v.  Cincinnati,  1  Dis- 


Code  §  28] 


STREETS. 


'      /   UNIVERSITY 

CONTROL   BY   COUNCIL.       ^a*c::=^"Xl7a 


ney,  532;  Norwalk  v.  Tuttle,  73  O. 
S.  242.  And  see  Bloom  v.  Toledo, 
25  C.  C.  235;  2  C.  C.  (N.  S.)  108; 
reversed  72  O.  S.  652.  But  see 
Bretsch  v.  Toledo,  1  N.  P.  210;  Cin- 
cinnati v.  Grebner,  25  C.  C.  700; 
7  C.  C.  (N.  S.)  11.  When  the  slip- 
pery condition  is  apparent  it  would 
be  negligence  to  go  upon  the  side- 
walk. Conneaut  v.  Naef,  54  O.  S. 
529;  Schaefier  v.  Sandusky,  33  O.  S. 
246;  Schneider  v.  Cincinnati,  16 
Dec.  206;  4  N.  P.  (N.  S.)  57;  Nor- 
walk v.  Tuttle,  50  B.  272. 

Negligence  of  municipality  in 
leaving  snow  and  ice  on  sidewalk, 
when  a  question  for  the  jury,  see 
Russell  v.  Toledo,  19  C.  C.  418; 
Barry  v.  Akron,  7  C.  C.  (N.  S.)  575. 

City  is  negligent  if  it  leaves  an 
excavation  unguarded  on  a  public 
way  established  by  user  through  a 
market  building.  Nitz  v.  Toledo, 
22  C.  C.  454;  Toledo  v.  Nitz, 
3  C.  C.    (N.  S.)    532;  23  C.  C.  350. 

Crty  is  liable  for  injury  caused 
by  a  bridge  on  a  street  crossing  a 
stream,  being  without  rails  or 
guards,  whereby  a  child  falls  in  and 
is  drowned.  Boyd  v.  Cambridge,  4 
C.  C.  519. 

City  is  not  liable  for  dangerous 
condition  of  land  adjacent  to  street, 
but  not  so  near  as  to  menace  ordi- 
nary travelers.  Kelley  v.  Columbus, 
41  O.  S.  263. 

City's  liability  for  steam  roller 
loaned  by  city  contractor  and  left 
in  street,  see  Pears  v.  Cleveland,  1 
Clev.  328. 

City  is  liable  for  injury  due  to  a 
part  of  a  sidewalk  not  conforming 
to  the  grade  of  the  street,  this  con- 
dition remaining  for  a  long  time  to 
the  knowledge  of  the  city.  Toledo 
v.  Higgins,  12  C.  C.  541. 

A  building  permit  authorizing 
temporary  obstruction  of  a  street 
and  requiring  a  light  at  night,  does 


not  relieve  the  city  of  liability. 
Cleveland  v.  King,  132  U.  S.  295. 

But  city  is  not  liable,  without  ex- 
press or  implied  notice,  for  injuries 
caused  by  failure  to  guard  such 
temporary  obstructions,  uness  the 
permit  given  was  to  do  something 
intrinsically  dangerous.  Columbus 
v.  Penrod,  73  O.  S.  209. 

Where  city  grants  permission  to 
make  a  dangerous  excavation  in  a 
street,  and  the  excavation  is  prop- 
erly guarded,  but  subsequently  the 
protection  is  removed,  the  city 
would  not  be  liable  for  injury  due 
to  unprotected  excavation,  in  the 
absence  of  actual  or  constructive  no- 
tice of  the  removal  of  the  protec- 
tion. Hewitt  v.  Cleveland,  67  O.  S. 
534  (without  report,  reversing  21 
C.  C.  505). 

City  is  liable  for  injury  resulting 
from  unguarded  excavation  left  by 
the  removal  of  platform  scales  in  a 
market  place,  with  knowledge  of  the 
city.     Nitz  v.  Toledo,  22  C.  C.  454. 

City  is  liable  for  damages  result- 
ing from  cistern  negligently  con- 
structed in  street.  Circleville  v. 
Neuding,  41   O.  S.  465. 

Where  a  telephone  pole  in  the 
street  has,  subsequent  to  its  erec- 
tion, become  dangerous,  municipal- 
ity may  be  liable  for  injury  caused 
thereby,  after  notice  of  dangerous 
condition.  Norwalk  v.  Jacobs,  27 
C.  C.  691;  7  C.  C.   (N.  S.)   229. 

Injuries  to  property. — City  is  lia- 
ble for  injury  resulting  from  defec- 
tive service  pipe  causing  water  to 
leak  into  plaintiff's  cellar,  if  city 
has  notice.  Cincinnati  v.  Jacob,  18 
B.  65.  For  damages  caused  by  pre- 
venting surface  water  from  escaping 
into  catch  basins,  in  course  of  grad- 
ing a  street,  and  injuring  plaintiff's 
house.  Toledo  v.  Lewis,  32  B.  378 ; 
for  injury  caused  by  overflow  of 
surface  water  in  making  side  streets. 


118 


THE   OHIO   MUNICIPAL   CODE. 


[Code  §  28 


MeBride  v.  Akron,  12  C.  C.  610. 
Such  overflow  causing  damage  is  a 
continuing  nuisance  for  which  ac- 
tions will  lie  from  time  to  time. 
Toledo  v.  Lewis,  17  C.  C.  588. 

Owner  of  lot  situated  lower  than 
street  cannot  complain  of  overflow  of 
surface  water  because  of  raising  of 
street,  if  he  has  received  or  waived 
compensation  for  the  change  of 
grade.  Sharp  v.  Cincinnati,  26  C. 
C.  59;  4  C.  C.  (N.  S.)  19.  See  also 
Hamilton  v.  Ashbrook,  62  O.  S.  511. 

Where  no  negligence  is  shown,  city 
is  not  liable  for  settling  of  a  build- 
ing caused  by  excavation  for  a  sew- 
er constructed  by  it.  Columbus  v. 
Jaeger,  36  B.  191. 

Municipality  is  liable  for  injuries 
resulting  from  break  in  water  main 
caused  by  its  negligence.  Werner  v. 
Cincinnati,  23  C.  C.  475;  3  C.  C. 
(N.  S.)  276  (affirmed,  70  O.  S.  455). 

General  principles  of  municipal 
liability  for  damages  resulting  from 
improvement  of  streets,  see  Cincin- 
nati v.  Penny,  21  O.  S.  499. 

Liability  for  damages  for  change 
of  grade,  see  notes  to  §  54  of  the 
Code. 

Liability  for  damages  resulting 
from  construction  of  sewer,  see  notes 
to  §  77  of  the  Code. 

Liability  for  damages  for  injury 
caused  by  railroad  constructed  in 
street,  see  note  "Use  Granted  to 
Railroad,"  supra. 

Where  duty  of  county  to  re= 
pair.  —  A  village  having  notice 
thereof  is  liable  for  injury  caused 
by  a  dangerous  excavation  left  in 
building  a  bridge  within  the  corpo- 
ration, although  built-  by  the  county, 
and  although  the  village  receives  no 
part  of  the  bridge  fund.  Newark  v. 
McDowell,  16  C.  C.  556. 

And  so,  though  the  couaty  had  no 


authority  to  construct  the  bridge. 
Newark  v.  Jones,  16  C.  C.  563. 

The  fact  that  it  was  the  county's 
duty  to  repair  a  defect  in  a  bridge 
within  the  city,  does  not  relieve  the 
city  of  liability.  Mooney  v.  St. 
Marys,  15  £.  C.  446. 

As  to  liability  of  city  to  repair 
bridge  within  its  limits,  but  on  state 
or  county  road  where  city  receives 
no  part  of  the  bridge  fund,  see  Brink 
v.  Columbus,  37  B.  22;  Sullivan 
v.  Newark,  7  N.  P.  556. 

The  municipality  is  liable  for  in- 
jury caused  by  a  hole  in  a  bridge 
within  its  limits  notwithstanding 
the  duty  of  the  county  commission- 
ers to  construct  and  keep  in  repair 
such  bridge.  Mooney  v.  St.  Marys, 
15  C.  C.  446;  Piqua  v.  Geist,  59  O. 
S.   163. 

But  the  right  of  action  for  de- 
struction of  a  bridge  built  by  coun- 
ty, but  within  a  village,  is  in  the 
county  commissioners.  Perry  Co.  v. 
K.  R.  Co.,  43  O.  S.  451. 

Where  injury  is  caused  through 
acts  of  agent  of  municipality. — 

The  wrongful  act  causing  injury 
may  not  be  done  directly  by  the  mu- 
nicipality, but  indirectly  under  its 
authority.  The  city  is  equally  liable 
in  such  case.  Thus  a  city  is  liable 
for  the  neglect  of  a  city  board  mak- 
ing a  street  under  a  special  act. 
Johns  v.  Cincinnati,  45  O.  S.  278. 

It  is  liable  for  injury  caused  in 
the  improvement  of  a  vault  by 
trustees  of  a  cemetery  belonging  to 
a  city.   Toledo  v.  Cone,  41  O.  S.  149. 

The  city  of  Cincinnati  was  held 
liable  for  damages  for  obstruction  of 
access  resulting  from  laying  of 
tracks  in  the  streets  by  trustees  of 
Cincinnati  Southern  R.  R.  English 
v.  Trustees  So.  Ry.,  8  B.  15. 

But  the  city  is  not  liable  for  the 
acts  of  the  Board  of  Education  in 


Code  §  28] 


STREETS.      CONTROL   BY   COUNCIL. 


119 


allowing  a  school  house  to  become 
dangerous.  The  board  of  education 
is  not  an  agent  of  the  city.  Diehm 
v.  Cincinnati,  25  O.  S.  305.  Fire- 
men are  not  the  agents  of  the  city 
so  as  to  make  the  city  liable  for 
their  acts.  Thomas  v.  Findlay,  6  C. 
C.  241.  Nor  will  a  health  officer's 
act  make  the  city  liable.  Turner  v. 
Toledo,  15  C.  C.  627.  - 

Municipality  cannot  shift  the  re- 
sponsibility because  the  work  was 
done  by  a  property  owner  for  it. 
Alliance  v.  Campbell,  17  C.  C.  595; 
as  where  a  property  owner  has  con- 
structed the  sidewalks  which  caused 
injury.  lb.  Though  where  the  in- 
jury has  been  thus  caused  by  a 
property  owner  the  city  may  have 
an  action  over  against  the  person 
directly  responsible.  Zanesville  v. 
Fannan,  53  O.  B.  605. 

Independent  contracto  r. — 

Where  the  work  in  the  course  of 
which  injury  is  caused,  is  done  not 
by  an  agent  of  the  city,  but  by  an 
independent  contractor,  the  city  is 
not  liable  unless  the  character  of 
the  work  contracted  for  is  neces- 
sarily dangerous  or  unless  the  city 
has  retained  control  over  the  mode 
and  manner  of  doing  the  work.  See 
Cincinnati  v.  Stone,  5  O.  S.  38;  Chi- 
cago v.  Kobbins,  4  Wall.  657. 

The  city  is  liable  where  there  was 
a  defect  in  the  plan  made  by  the 
city  engineer  and  being  carried  out 
by  the  independent  contractor.  Day- 
ton v.  Fease,  4  O.  S.  80. 

The  city  is  liable  where  its  agree- 
ment with  the  independent  contrac- 
tor provides  that  the  work  shall  be 
done  under  the  direction  of  the  civil 
engineer  or  other  person  appointed 
by  the  city  council  for  that  purpose. 
Cincinnati  v.  Stone,  5  O.  S.  38.  See 
Steubenville  v.  McGill,  41  O.  S.  235. 
See  also  Bridge  Co.  v.  Steinbrock,  61 
O.  S.  215. 


The  fact  that  the  city  gave  a  per- 
mit to  use  part  of  a  street  for  plac- 
ing building  materials,  etc.,  would 
not  make  it  liable  to  one  injured  by 
failure  to  guard  the  obstruction, 
unless  the  city  had  notice  and  was 
guilty  of  negligence.  Columbus  v. 
Fenrod,  73  O.  S.  209;  or  unless  the 
permit  is  to  do  something  neces- 
sarily dangerous.  Gable  v.  Toledo, 
16  C.  C.  515;  District  of  Columbia 
v.  Woodbury,  136  U.  S.  450. 

Notice  as  a  condition  prece= 
dent  to  liability. — The  liability  of 
municipality  growing  out  of  its  duty 
to  keep  the  streets,  etc.,  in  repair 
and  free  from  nuisance  may  arise 
either  from  actual  wrongful  acts  on 
the  part  of  the  municipality  or  its 
agents,  such  as  an  improper  con- 
struction of  a  street  or  sidewalk  or 
dangerous  excavation,  or  from  its 
neglect  to  act,  such  as  its  failure  to 
remove  obstacles  or  to  make  repairs. 
In  the  former  case  the  liability  of 
municipality  arises  without  any 
notice  to  it.  Middleport  v.  Taylor, 
2  C.  C.  366;  Hewitt  v.  Cleveland, 
21  C.  C.  505;  McGovern  v.  Mt.  Ver- 
non, 22  B.  363.  In  the  latter  case 
the  liability  arises  only  after  notice 
actual  or  constructive  to  the  mu- 
nicipality of  the  dangerous  obstruc- 
tion or  condition  and  its  failure 
thereafter  to  remove  it.  Alliance  v. 
Campbell,  17  C.  C.  595;  Groveport 
v.  Bradfield,  2#C.  C.  145;  Chase  v. 
Cleveland,  44  6.  S.  505. 

As  to  notice  where  defect  is 
caused  though  work  is  done  in  ac- 
cordance with  plan  adoptea,  see  Cir- 
cleville  v.  Sohn,  59  O.  S.  285.  See 
further  as  to  latent  defect  in  street, 
McGovern  v.  Mt.  Vernon,  22  B.  363. 

Actual  notice  means  notice  to  the 
officers  having  authority  over  the 
removal  of  such  nuisances.  McGov- 
ern v.  Mt.  Vernon,  22  B.  363 ;  Cleve- 
land v.  Fayne,  72  O.  S.  347. 


120 


THE   OHIO    MUNICIPAL    CODE. 


[Code  §28 


So  where  platform  scales  in  a  mar- 
ket place  were  removed,  leaving  a 
dangerous  excavation,  the  fact  that 
the  city  auditor  knew  of  the  exca- 
vation, notified  new  lessee  of  market 
space  and  that  superintendent  of 
market  was  present  at  the  time  of 
removal  would  show  notice  to  mu- 
nicipality. Nitz  v.  Toledo,  22  C.  C. 
454;  Toledo  v.  Nitz,  3  C.  C.  (N.  S.) 
532;  23  C.  C.  350. 

Notice  to  policeman  would  not  be 
actual  notice  to  the  municipality, 
unless  municipality  was  authorized 
to  and  did  prescribe  duties  of  po- 
licemen such  as  to  make  them  its 
agents  "in  respect  to  its  duty  to 
keep  the  streets  open  and  in  repair." 
Cleveland  v.  Payne,  72  O.  B.  347. 

Constructive  notice  is  shown  by 
evidence  of  facts  from  which  it 
would  arise.  Toledo  v.  Kadbone,  3 
C.  C.  (N.  S.)  382;  23  C.  C.  268 
(affirmed,  68  O.  S.  687) .  As  to  what 
facts  show  constructive  notice,  see 
generally  Shelby  v.  Clagett,  46  O.  S. 
549  (knowledge  of  general  defect  in 
sidewalk  not  notice  of  particu- 
lar defect). 

As  to  when  constructive  notice  is 
shown  because  the  defect  or  obstruc- 
tion remains  for  such  a  length  of 
time  that  the  municipal  authorities 
in  the  exercise  of  ordinary  care 
ought  to  have  known  of  it,  see  Cin- 
cinnati v.  Frazer,  18  C.  C.  50; 
Groveport  v.  Bradfield,  2  C.  C.  145 
(affirmed,  30  B.  351);  Fremont  v. 
Dunlap,  69  O.  S.  286.  As  to  actual 
notice  shown  by  the  character  of  the 
defect,  see  Toledo  v.  Higgins,  12 
C.  C.  646. 

The  determination  of  question  of 
sufficiency  of  lapse  of  time  to  oper- 
ate as  notice  of  a  defect  in  street, 
will  depend  upon  location  thereof 
and  the  circumstances  of  each  par- 
ticular case.  Kittredge  v.  Cincin- 
nati, '28  C.  C.  100;  6  C.  C.  (N.  S.) 
646. 

To  charge  a  municipality  with 
negligence  in  failing  to  repair  a  de- 
fect in  street,  it  must  be  shown  that 
the  actual  or  constructive  notice 
thereof  was  received  in  time  to  make 
the  repair  or  provide  against  acci- 
dent. Kittredge  v.  Cincinnati,  28 
C.  C.  100;  6  C.  C.    (N.  S.)    646;   so 


municipality  was  held  not  liable  for 
accident  due  to  slippery  sidewalk, 
where  sidewalk  became  slippery 
over  night  and  accident  happened 
in  early  morning.  Leipsie  v.  Gerde- 
man,  68  O.  S.  1. 

And  where  dangerous  condition  of 
street  crossing  was  caused  by  a  hard 
rain  and  injury  occurred  same  day, 
municipality  was  not  charged  with 
notice.  Schneider  v.  Cincinnati,  16 
Dec.  206;  4  N.  P.   (N.  S.)   57. 

Contributory      negligence.  — 

Where  plaintiff's  want  of  ordinary 
care  contributed  to  the  accident,  the 
resulting  injury  must  be  borne  by 
him,  even  though  the  city  was  guilty 
of  negligence  in  allowing  the  danger 
to  exist.  Clemens  v.  Dayton,  Ohio 
Dec.  Dayt.  76;  Ohliger  v.  Toledo,  20 
C.  C.  142. 

Where  a  pedestrian  leaves  the 
sidewalk  and  resorts  to  the  street, 
without  necessity,  and  for .  his  own 
pleasure  or  convenience,  and  meets 
with  an  accident,  he  is  guilty  of  con- 
tributory negligence  which  would 
bar  his  recovery.  Groveport  v.  Brad- 
field,  2  C.  C.   145. 

As  to  contributory  negligence  in 
going  upon  slippery  or  defective 
sidewalk  or  gutter,  where  the  dan- 
gerous condition  is  apparent,  see 
Schaefler  v.  Sandusky,  33  O.  S.  246; 
Conneaut  v.  Neaf,  54  O.  S.  529; 
Peat  v.  Norwalk,  26  C.  C.  161;  5 
C.  C.  (N.  S.)  614;  Cleveland  v. 
Stofer,  1  O.  S.  C.  D.  300;  Toledo  v. 
Center,  1  O.  S.  C.  D.  359;  Norwalk 
v.  Tuttle,  50  B.  272 ;  Puccine  v.  Cin- 
cinnati, 15  Dec.  608;  3  N.  P.  (N. 
S.)  362;  Toledo  v.  Fuller,  27  C.  C. 
729;  7  C.  C.  (N.  S.)  598;  Akron  v. 
Keister,  27  C.  C.  809;  6  C.  C.  (N. 
S.)  603;  Lalond  v.  Toledo,  6  C.  C. 
(N.  S.)   241. 

As  to  contributory  negligence  in 
running  into  snow  piled  up  in  street, 
see  Donald  v.  Toledo,  8  O.  F.  D.  261. 

A  charge  that  if  plaintiff's  own 
negligence  contributed  "in  any  de- 
gree" to  the  injury  he  cannot  re- 
cover, is  erroneous.  Nitz  v.  Toledo, 
22  C.  C.  454 ;  see  also  Toledo  v.  Nitz, 
3  C.  C.  (N.  S.)  532;  23  C.  C.  350; 
Matthews  v.  Toledo,  21  C.  C.  69 
(aff'd  without  report,  65  O.  S.  561 )  ; 


Code    §    28]        STREETS.       CONTROL    BY    COUNCIL. 


121 


Schweinfurth  v.  R.  R.  Co.,  60  O.  S. 
215;  Johnson  v.  Cincinnati,  20  C.  C. 
657;  Werner  v.  Cincinnati,  23  C.  C. 
475;  3  C.  C.  (N.  S.)  276,  (aff'd,  70 
O.  S.  455). 

A  mistake  in  treatment,  due  to 
error  as  to  nature  or  extent  of  in- 
juries will  not  bar  recovery  or  miti- 
gate damages.  Toledo  v.  Radbone,  3 
C.  C.  (N.  S.  382;  23  C.  C.  268, 
(aff'd,  68  O.  S.  687). 

Indemnity  from  property  owner 
causing  injury. —  As  to  the  right  of 
the  municipality  when  compelled  to 
pay  damages  for  negligent  construc- 
tion or  nuisance  in  the  street,  to  re- 
cover indemnity  from  the  lot  owner 
who  directly  caused  the  injury,  see 
Wilhelm  v.  Defiance,  58  O.  S.  56. 
When  the  injury  is  caused  by  a  de- 
fect in  construction,  as  in  case  of  a 
sidewalk  negligently  laid,  the  city  is 
liable  and  cannot  recover  indemnity, 
although  the  lot  owner  constructed 
the  sidewalk  pursuant  to  a  notice 
from  the  city.  Wilhelm  v.  Defiance, 
58  0.  S.  56;  but  where  the  injury 
is  caused  by  defect  or  obstruction, 
placed  there  after  construction, 
the  lot  owner  who  caused  the  same 
is  liable.  Morris  v.  Woodburn,  57 
O.  S.  330;  and  the  city,  if  compelled 
to  pay  the  damages  therefor,  may 
recover  indemnity.  Wilhelm  v.  De- 
fiance, 58  O.  S.  56,  63;  Chicago  v. 
Robbins,  4  Wall.   (U.  S.)  657. 

See  further  as  to  liability  of  abut- 
ting owner  for  defect  in  sidewalk, 
Grunkemeyer  v.  Johnston,  47  B. 
413. 

Pleading,  practice  and  evidence. 
—  A  mere  allegation  that  it  was  the 
duty  of  the  municipality  to  keep  the 
sidewalk  in  repair  and  that  it  negli- 
gently omitted  to  do  so  without  al- 
leging notice  of  defect  before  the 
injury,  or  that  defect  was  occasioned 
by  positive  misfeasance  of  munic- 
ipality or  its  agents,  or  construc- 
tive notice,  is  not  sufficient  to  sus- 
tain action.  Middleport  v.  Taylor, 
2*C.  C.  366. 

In  an  action  for  injury  from  fall- 
ing into  a  street  excavation,  an  en- 
gineer's prior  report  as  to  what  ex- 
cavation    is      necessary      ard     the 


specifications  given  to  the  contrac- 
tor, are  not  admissible  to  show  the 
depth  of  the  excavation.  Moon  v. 
Middletown,  14  C.  C.  498. 

A  charge  that  H  a  city  owes  no 
duty  to  a  negligent  person  "  does  not 
correctly  state  the  law  and  is  mis- 
leading. A  city  owes  the  duty  of 
exercising  ordinary  care  in  its  con- 
trol over  the  streets,  although  if  a 
person  directly  contributes  to  his  in- 
jury he  is  not  entitled  to  recover. 
Ohliger  v.  Toledo,  20  C.  C.  142. 

Evidence  must  show  that  plain- 
tiff exercised  that  degree  of  care 
that  an  ordinarily  careful  and  pru- 
dent person  under  the  same  circum- 
stances would  have  exercised.  Cir- 
cleville  v.  Sohn,  20  C.  C.  368. 

An  instruction  which  makes  the 
degree  of  care  to  be  used  dependent 
on  the  apprehension  of  danger  en- 
tertained by  the  plaintiff  is  mis- 
leading,    lb. 

Evidence  that  rules  required  po- 
lice to  report  dangerous  condition 
of  sidewalks  is  inadmissible  in 
showing  notice  to  city.  Cleveland  v. 
Payne,  72  O.  8.  347. 

Where  icy  condition  of  the  side- 
walk which  caused  the  accident  was 
produced  by  ice  which  had  gathered 
over  night,  the  accident  occurring 
early  in  the  morning,  it  was  held 
error  to  submit  to  the  jury  whether 
the  village  might  by  the  exercise  of 
reasonable  care  and  diligence,  have 
had  knowledge  of  the  defect  in  time 
to  have  remedied  it,  no  knowledge 
being  shown.  Leipsic  v.  Gerdeman, 
68  O.  B.  1. 

It  is  error  to  charge  the  jury  that 
it  must  bear  in  mind  "the  extent 
of  territory  covered  by  the  city  and 
the  number  of  crossings  demanding 
care,  and  the  number  and  nature  of 
the  duties  devolving  upon  the  city 
and  also  claiming  its  care  and  atten- 
tion." Cincinnati  v.  Frazier,  19  C. 
C.  604. 

This  section  may  properly  be  read 
to  a  jury  as  part  of  the  court's 
charge  in  defining  the  municipality's 
duty.  Toledo  v.  Nitz,  3  C.  C.  (N. 
S.)    532;   23  C.  C.  350. 

When  allegation  of  portion  of 
street  where  accident  occurred  was 
slightly  different  from  that  shown 
by  proof,   there   is  not  a   fatal  va- 


122 


THE   OHIO   MUNICIPAL    CODE. 


[Code  §28 


riunce.     Toledo  v.  Willinger,  27  C. 
C.  512;  6  C.  C.    (N.  S.)   641. 

The  burden  of  proof  is  not  on 
plaintiff  to  prove  the  exercise  of  due 
care,  even  when  petition  alleges  that 
plaintiff  exercised  due  care,  unless 
averments  of  petition  suggest  the 
implication  of  contributory  negli- 
gence. Armleder  v.  Cincinnati,  16 
Dec.    180. 

As  to  instructions  upon  value  of 
hypothetical  question,  see  McLean 
v.  Cincinnati,  16  Dec.  459;  3  N.  P. 
(N.  8.)   676. 

Where  special  findings  of  a-  jury, 
in  damage  suit  against  the  city  for 
personal  injuries,  are  inconsistent 
with  general  verdict,  the  former  will 
control.  Middleport  v.  Taylor,  2  C. 
C.  366. 

When  special  finding  of  jury  was 
that  the  street  or  bridge  was  in 
reasonably  safe  condition  for  public 
travel  in  the  ordinary  mode,  the  city 
is  entitled  to  judgment,  notwith- 
standing a  general  verdict  against 
the  city.  Troy  v.  Brady,  67  O.  S. 
65. 

In  an  action  for  injuries  caused 
by  a  defective  sidewalk  it  is  better 
practice  to  set  out  in  the  petition 
the  dangerous  character  of  the  side- 
walk. Middleport  v.  Taylor,  2  C.  C. 
366. 

The  city  is  the  proper  party  de- 
fendant in  an  action  for  damages  for 
failure  to  keep  the  streets  in  repair. 
Herrick  v.  Cleveland,  7  C.  C.  470. 
As  to  whether  council  might  be  sued, 
see  lb.  479. 

The  city  and  parties  responsible 
for  unguarded  excavation  in  street 
cannot  be  joined  as  codefendants. 
Zeigler  v.  Ashley,  1  N.  P.  62. 


An  action  against  a  city  for  per- 
sonal injury  caused  by  the  city's 
leaving  the  streets  in  a  dangerous 
condition,  obstructed  by  rubbish, 
etc.,  is  an  action  for  maintaining  a 
nuisance  within  §  5144  and  abates 
at  the  death  of  the  party  injured. 
Cardington  v.  Adm'r  of  Fredericks, 
46  O.  8.  442. 

County  commissioners  are  not 
proper  parties  to  institute  proceed- 
ings in  mandamus  to  compel  a  city 
to  assume  care  and  control  over  via- 
duct which  commissioners  have  built 
within  the  city  limits,  under  statu- 
tory directions.  State  ex  rel.  v.  Cin- 
cinnati, 4  N.  P.  313. 

Where  city  fails  to  take  charge  of 
and  keep  in  repair  a  viaduct  built 
within  its  limits,  by  a  county,  the 
county  commissioners  are  not  prop- 
er parties  to  compel  the  city  to  ac- 
cept it  by  proceedings  in  mandamus. 
State  ex  rel.  v.  Cincinnati,  4  N.  P. 
313. 

As  to  quo  warranto  proceedings  in 
case  where  municipality  has  grant- 
ed franchise  to  street  railway  com- 
pany to  use  a  bridge  within  munic- 
ipal limits,  but  built  by  county,  see 
State  ex  rel.  v.  Railway  Co.,  19  C. 
C.  79. 

Measure  of  damages. — As  to  meas- 
ure of  damages  in  action  for  injury 
to  property,  see  Cincinnati  v. 
Wright,  2  N.  P.  (N.  S.)  53. 

As  to  measure  of  damages  in  per- 
sonal injury  cases,  see  Ohliger  v. 
Traction  Co.,  23  C.  C.  265;  Toledo 
v.  Radbone,  23  C.  C.  268;  3  C.  C. 
(N.  S.)  382  (aff'd  68  O.  S.  687); 
Toledo  v.  Nitz,  23  C.  C.  350;  Toledo 
v.  Fuller,  27  C.  C.  729;  7  C.  C.  (N. 
S.)    598. 


Sec.  2642  R.  S.   [Provision  to  be  made  by  ordinance  for  open- 
ing streets,  etc.]     When  it  is  deemed  necessary  by  the  council 


Code  §  28]  STREETS.       CONTROL   BY    COUNCIL.  123 

of  any  municipal  corporation  to  open,  extend,  straighten,  alter, 
divert,  narrow,  or  widen  any  street,  alley,  or  public  highway 
within  the  limits  of  such  corporation,  the  council  shall  provide 
by  ordinance  for  the  same1  and  such  ordinance  shall  briefly,  and 
in  general  terms,  describe  the  part,  if  any,  of  said  street,  alley, 
or  public  highway  to  be  abandoned  by  reason  of  such  change 
thereof,  and  the  property,  if  any,  to  be  appropriated  for  such 
purposes,  and  the  preceeding  for  such  appropriation  shall  be 
as  provided  in  chapter  three,  division  seven,  of  this  title.2  [1906, 
April  14,  98  v.  143;  70  v.  126.] 

(1)  See  note  2  "Appropriations  is  repealed  by  the  Code,  and  §§10 
for  street  improvement"  under  §  12  to  22  of  the  Code  substituted.  The 
of  the  Code.  proceedings,     therefore,     would     be 

(2)  Every  section  of  chapter  3,  such  as  are  provided  in  these  sec- 
div.  7,  of  title  XII,  referred  to  here,  tions  of  the  new  Code. 

Sec.  2643  R.  S.  [When  turnpike  or  plank-road  becomes 
street.]  When  any  turnpike  or  plank-road 'terminates  within 
the  corporate  limits,  any  portion  of  it  so  included  therein  shall 
become  a  public  street  of  the  corporation  and  shall  be  main- 
tained and  kept  in  repair  as  other  streets ;  and  the  council  may 
cause  the  same  to  be  condemned  and  appropriated1  for  use  as 
such,  according  to  the  provisions  of  chapter  three,  division 
seven,  of  this  title.2     [66  v.  236,  §  510.] 

(1)   Amount  condemned.  —  A  missible.  Cincinnati  v.  Scarborough, 

city   cannot   condemn   a    portion   of  5  B.  77. 

that    part   of    a   turnpike    brought  A  person  familiar  with  the  road, 

within  its  limits,  but  must  condemn  its  income  and  probable  future,  and 

all   within   the   corporation.     Turn-  an  expert  in  stocks,  bonds  and  in- 

pike  Co.  v.  Cincinnati,  2  B.  126.  vestments,  may  give  his  opinion  as 

n.   ..        £   .           ..  to  the  rate  at  which  the  income  of 

Rights  of  turnpike  company.  h  road  should  be  capitaiiZed.  lb. 

-Fart   of   turnpike   coming  within  Conversations     of     president     of. 

municipal   limits   becomes   a   public  ♦«-«_mM  „„,,,„„„„  :„  ^r^fion™  f™* 

street  and  turnmke  eomnanv  is  di-  turnPlke  company  in  negotiating  for 

street  and  turnpike  company  is  ai  gaie    f  rQad  t        gtreet  railway  com. 

vested   of   all   control   oyer   it,  not-  dedicated  to  city,  are  not 

withstanding  compensation  has  not  £dmJisaibl  as  evidence  0f  value  on 
J.1"*  wV* n     °    le  2E??&    «       behalf  of   city   seeking  to   condemn 

£  &  JTi  TP«  C.° *  V'  iractlT    n"  a  part  of  the  road  within  its  limits, 

Dec.  118      But  see   turnpike  Co.  v.         ^       fa     -t     officers   were         gent 

Cincinnati,  5  Dec.  (Re)  299.  t    th*  tim/  of    the    co^^tions. 

And  turnpike  company  cannot  en-       Cincinnati    and    Wooster    Turnpike 

join  trespass  by  street  railway  com-       c  Cincinnati,  19  C.  C.  607. 

FY  w    *Uch  P^  ^  !S  ^n  •     ?«  The  jury  mav  ascertain  the  prob- 

C.  &  W   Ip.  Co.  v.  Traction  Co.,  15       aMe  fu{ur£  incJme  of  the  wholeFroad 

uec.  il».  b^    considering    the     past    income, 

Evidence  of  value. — Evidence  of  probable  future  travel,  the  chances 

the  net  revenue  derived  from  tolls  of    evading   toll    because    of    future 

taken  on  that  portion  of  a  turnpike  cross  streets,  contracts  with  a  street 

lying  within  a  municipality,  is  ad-  railroad   for   use   of   the   road,   con- 


124 


THE    OHIO    MUNICIPAL     CODE. 


[Code  §  28 


tracts  for  repair  and  other  expenses, 
and  the  proportion  of  the  income 
that  may  be  lost  by  the  appropria- 
tion. Avondale  v.  Tp.  Co.,  18  B. 
308. 

In  capitalizing  the  income  lost 
by  the  appropriation  the  jury  may 
consider  the  legislative  right  to  re- 
duce tolls,  and  the  chances  of  for- 
feiture for  non  repair,  etc.  The 
capitalization  must  be  such  as 
would  reasonably  be  earned  by  a 
safe  investment.     lb. 

There  are  two  methods  of  fixing 
compensation  for  part  of  turnpike 
appropriated  by  a  municipality 
which  may  be  resorted  to:     First, — 


tbe  direct  method  of  determining  in 
detail  the  present  cash  value  tangi- 
ble and  intangible,  of  the  property 
according  to  its  best  use  and  adapt- 
ability; second  —  the  capitalization 
method,  of  determining  the  rate  of 
per  cent,  at  which  the  probable  fu- 
ture net  annual  income  of  the  strip 
appropriated  should  be  capitalized, 
and  then  ascertaining  therefrom  the 
capital  as  the  basis  of  value  of  all 
the  property  taken.  C.  C.  &  W.  Tp. 
Co.  v.  Cincinnati,  6  N.  P.  233. 

See  Cincinnati  v.  Delhi,  etc.  Tp. 
Co.,   33  B.   250. 

(2)  See  note  2  to  §  2642  R.  S., 
supra. 


Sec.  2644  R.  S.  [Cost  of  improving  turnpikes,  etc.]  When  any 
portion  of  a  turnpike  or  plank-road,  or  the  control  thereof,  is 
required  by  a  municipal  corporation,  or  when  any  arrangement 
is  made  with  the  company  owning  the  same  for  the  improve- 
ment or  repair  thereof,  provision  for  the  cost,  and  for  improv- 
ing and  keeping  such  turnpike  or  road  in  repair,  shall  be  made, 
as  is  provided  with  respect  to  the  streets  and  other  highways  of 
the  corporation.1      [66  v.  250,  §  597.] 


( 1 )  Assessment  of  cost  of  con- 
demnation of  toll  road  was  held  to 
be  properly  levied  on  abutting  prop- 
erty in  Winslow  v.  Cincinnati,  10 
C.  C.  191,  53  O.  S.  665;  but  see  Ry. 
Co.  v.  Cincinnati,  62  O.  S.  465,  and 
Payton  v.  Bauman,  66  0.  S.  379. 

Contract  exempting  from  toll 
the  residents  of  a  village  in  consid- 


eration of  annual  payment  by  vil- 
lage to  turnpike  company,  held  to 
amount  to  a  method  of  collecting 
toll.  State  v.  Lower  River  Road, 
21  C.  C.  662.  As  to  the  validity 
of  such  a  contract  see  Extension  of 
Lower  River  Road  Co.  v.  Cincinnati, 
13  Dec.  214.      (See  2  O.  L.  R.  281.) 


Sec.  2645  R.  S.  [Remedy  for  neglect  of  corporation  to  keep 
turnpike,  etc.,  in  repair.]  If  a  municipal  corporation  condemn 
any  portion  of  a  turnpike  or  plank-road,  and  fail  to  keep  the 
portion  so  condemned  in  as  good  condition  and  repair  as  is  re- 
quired by  the  charter  of  the  company,  the  directors  of  the  com- 
pany mav,  bv  writ  of  mandamus,  compel  the  corporation  to  per- 
form that  duty-      [72  v.  164,  §  598.] 

Sec.  2646  R.  S.  [How  turnpike  or  plank-road  condemned  for 
street  purposes.]  If  any  city  has  extended  or  hereafter  extends 
its  limits  so  as  to  include  therein  a  portion  of  any  turnpike  or 


Codf>    §    28]  STREETS.       CONTROL  BY  COUNCIL.  125 

plank-road,  without  purchasing  or  condemning  the  same,  the 
council  shall,  within  six  months  after  the  mayor  is  notified  in 
writing  that  such  company  demands  compensation  therefor, 
proceed  in  the  manner  prescribed  in  chapter  three,  division 
seven,  of  this  title,1  to  cause  such  portion  of  such  turnpike  or 
plank-road  to  be  condemned  for  street  purposes ;  on  failure  of 
such  council  so  to  proceed,  the  president  of  such  turnpike  or 
plank-road  company,2  if  authorized  by  the  directors  thereof, 
may  file  an  application  in  the  Court  of  Common  Pleas  of  the 
proper  county,  setting  forth  the  facts  aforesaid,  and  asking  that 
the  value  of  such  portion  of  the  turnpike  or  plank-road  may  be 
assessed  by  a  jury,3  the  cause  shall  be  conducted  to  final  judg- 
ment in  the  manner  provided  in  said  last  mentioned  chapter, 
so  far  as  the  same  is  applicable,  and  such  city  shall  pay  the 
compensation  awarded  by  the  jury,  with  interest,  and  cost,  in 
such  proceeding,  within  one  year  after  date  of  the  rendition  of 
the  verdict,  and  when  the  compensation  awarded  has  been  paid, 
the  title  to  such  portion  of  such  turnpike  or  plank-road  shall 
vest  in  the  city,  and  for  the  purpose  of  providing  means  to  pay 
for  the  same,  the  city  council  of  any  city  of  the  first  or  second 
grade  of  the  second  class,4  may  levy  a  tax  in  addition  to  the 
amount  now  limited  by  law.      [72  v.  164,  §  598.] 

(1)  See  note  2  to  §  2642  R.  S..  taken  by  a  city  to  be  as  provided 
and  see  as  to  condemnation  of  turn-  here,  and  such  company  was  held 
pike  in  municipal  limits,  §  3491  not  entitled  to  a  civil  action  as  a 
R.  S.  in  Part  II.  plankroad    company    under    act    of 

(2)  A  corporation  organized  to  March  23rd,  1869,  66  0.  L.  36.  Tre- 
provide  for  the  keeping  in  repair  of  mainsville  PI.  &  Tp.  Co.  v.  Toledo, 
gravel,  macadamized  roads,  etc.,  a  I-  31  O.  S.  588. 

though  the  road  of  such  corporation  (3)    See  note  2  to  §   2642  R.   S. 

be  a   plankroad,   was   held   to   be  a  supra. 

turnpike  company  within  the  mean-  (4)  See  note  6  "Grades  and  class- 
ing of  this  section  and  its  remedy  es  under  new  Code "  under  §  1599 
for  compensation  of  part  of  its  road  R.  S.,  p.  31. 

Sec.  2647  R.  S.  [Adaptation  of  turnpike  or  plank-road  to 
corporation  uses,  etc.]  When  the  roau  ->f  any  turnpike  or 
plank-road  company  passes  through  or  terminates  in  any  muni- 
cipal corporation,  the  council  or  trustees  shall  have  power,  with 
the  consent  of  the  company,  to  make  any  improvement  or  repair 
of  such  road,  additional  to  the  improvement  or  repair  required 
by  law  of  the  company,  that,  in  the  opinion  of  the  council  or 
trustees,  will  better  adapt  such  road  to -use  as  a  street  of  the 
corporation.      [66  v.  251,  §  599.] 


126  the  ohio  municipal   code.  [Code  §  28 

Sec.  2648  R.  S.  [Right  of  toll  not  to  be  impaired.]  The  right 
of  any  company  to  take  toll  at  any  toll-gate  established  in  the 
corporation,  shall  not  be  impaired  by  anything  in  this  title  con- 
tained, except  where  the  road  of  the  company  has  been  duly  ap- 
propriated, and  compensation  made  therefor,  or  the  rights  of 
the  company  in  the  road  have  been  surrendered  by  agreement.1 
[66  v.  251,  §  600;  66  v.  36.] 

(1)    Toll     gate     in     municipal  peal  or  modify  §  34  of  Act  of  May 

limits. —  A  contract  between  muni-  1,  1852,  making  it  unlawful  to  keep 

cipality  and  turnpike  company,  by  up  a  toll  gate  or  collect  tolls  with- 

which    the    company    is    allowed    to  in    municipal    limits.      Tp.    Co.    v. 

maintain   part    of   its   road   in   the  Kelley,   41    0.    S.    144.     But   under 

municipal  limits  and  collect  toll  for  provisions  of   §   3491   R.   S.  it  was 

such  part,  must  be  construed  with  held  a  company  cannot  collect  tolls 

reference  to  the  laws  providing  for  for    the   part    of    its   road   included 

location  of  toll  gates,  and  the  com-  in  a  municipality.     Madisonville  v. 

pany  may  collect  toll  for  the  part  Tp.    Co.,    17    B.    30.      See    further, 

of  the  road  in  city  limits  if  its  toll  Bader  v.  Lower  River  Road,  21  C. 

gate    is   properly   located.      Spring-  C.    662. 

field  Tp.  Co.  v.  Springfield,  27  O.  S.  As   to  condemnation   of  turnpike 

584.  and  removal  of  toll  gate  in  munici- 

This  section  was  held  not  to  re-  pal  limits,  see  §  3491  R.  S. 

Sec.  2649  R.  S.  [Use  of  national  road  by  city  or  village  as 
street;  agreement  with  connty  commissioners  to  keep  same  in 
repair.]  The  council  of  any  city  or  village  through  which  the 
national  road  passes  may,  after  filing  with  the  county  com- 
missioners an  agreement,  in  writing,  authorized  by  the  council, 
and  signed  by  the  president  thereof,  binding  itself  to  keep  such 
road  in  such  repair  as  is  contemplated  by  the  act  or  acts  of 
congress  ceding  to  the  state  of  Ohio  the  jurisdiction  and  control 
of  such  portion  of  said  road  as  lies  within  this  state,  take  under 
their  care  and  control  so  much  of  the  road  as  passes  through 
the  corporate  limits  of  such  city  or  village,  and  use  and  occupy 
the  same  as  a  street  or  streets  for  such  city  or  village ;  and  when 
such  road  is  so  taken,  the  same  shall  be  kept  in  the  repair  afore- 
said, at  the  proper  cost  and  expense  of  the  citv  or  village.1 
[70  v.  194.] 

( 1 )    Keeping     in     repair. —  For       tional  road   in  repair,   see  Holling- 
discussion  of  relation  between  State       worth  v.  State,  29  O.  S.  552. 
and    municipality    in    keeping    na- 

Sec.  (2649 — 1)  E.  S.  §  1.  [Control  of  city  councils  over  por- 
tions of  national  road.]      The   city  council   of  any   municipal 


Code    §    28]  STREETS.      DEDICATION.  127 

corporation  in  this  state,  through  which  the  national  road 
passes,  shall  have  power  to  improve,  repair,  widen,  and  grade 
the  road-bed,  gutters,  and  sidewalks  of  said  road  within  the 
corporate  limits  of  such  city,  in  the  same  manner  and  upon  the 
same  terms  and  conditions  that  such  city  council  are  now  author- 
ized to  make  such  improvements,  repairs,  and  grades,  by  virtue 
of  "  an  act  to  provide  for  the  organization  and  government  of 
municipal  corporations/ '  passed  May  7th,  1869,  and  all  acts 
amendatory  thereof;      [70  v.  153.] 

Sec.  (2649—2)  R.  S.  §  1.  [Transfer  of  national  road  to  certain 
cities  and  villages;  conditions.]  The  council  of  any  city  or  in- 
corporated village  within  this  state,  through  which  the  national 
road  passes  may,  and  they  are  hereby  authorized  to  take  under 
their  care  and  control  so  much  of  the  said  road  as  passes  through 
the  corporate  limits  of  such  city  or  village,  and  use  and  occupy 
the  same  as  a  street  or  streets  for  such  city  or  village.  That 
where  said  road  shall  be  so  taken  by  such  city  or  village,  the 
same  shall  be  kept  in  such  repair  at  the  proper  costs  and  ex- 
penses of  the  city  or  village  so  taking  possession  thereof,  as  is 
contemplated  by  the  act  or  acts  of  congress  ceding  to  the  state 
of  Ohio  the  jurisdiction  and  control  of  such  portion  of  said  road 
as  lies  within  this  state ;  provided,  that  if  at  any  time,  in  the 
opinion  of  the  board  of  public  works,  any  portion  of  said  road 
so  taken  possession  of  by  any  city  or  village,  is  not  kept  in  such 
repair,  said  board  may,  in  its  discretion,  resume  the  control  and 
management  of  said  portion,  and  from  that  date  the  power  given 
in  this  act  to  such  city  or  village  shall  cease.      [70  v.  194.] 

Sec.  (2649 — 3)  R.  S.  §  2.  [Agreement  to  keep  in  repair  to  be 
filed  with  board  of  public  works.]  Before  exercising  any  such 
control  over  any  such  portion  of  said  road  as  lies  within  its 
corporate  limits,  such  city  or  village  shall  file  with  said  board 
of  public  works  an  agreement  in  writing,  binding  itself  to  keep 
such  road  in  such  repair;  which  agreement  shall  be  authorized 
by  the  council  thereof,  t.nd  signed  by  the  president  of  such 
council.1      [70  v.  194.] 

(1)    Agreement   with    state  by  within  the  corporate  limits  was  held 

municipality  to  keep  national  road  valid  in  Hollingworth  v.   State,  29 

in    repair    in    consideration    of   the  0.  S.  552. 
abandonment     of     toll     collections 


(b)     Dedication  of  Streets. 

Sec.  2650  R.  S.     [Dedication  of  streets ;  acceptance  by  council 
necessary.]     No  street  or  alley  which  has  been  or  may  be  dedi- 


128 


THE    OHIO    MUNICIPAL     CODE. 


[Code  §  28 


cated  to  public  use  by  the  proprietor  of  ground  in  any  corpora- 
tion, shall  be  deemed  a  public  street  or  alley,  or  under  the  care 
or  control  of  the  council,  unless  the  dedication  is  accepted  and 
confirmed  by  an  ordinance  specially  passed  for  such  purpose.1 
[66  v.*  222,  §  440.] 


(1)   Character    of    provision. — 

This  section  is  not  intended  as  a 
limitation  upon  the  general  powers 
of  a  municipality  for  opening  and 
improving  streets,  but  as  a  restric- 
tion to  prevent  the  municipality 
from  being  vested  with  the  title  to 
and  charged  with  the  care  of  streets 
and  alleys  without  its  consent.  Wis- 
by  v.   Bonte,   19  O.   S.  238. 

Public  highways  already  estab- 
lished, coming  into  a  municipal  cor- 
poration by  annexation,  do  not  have 
to  be  accepted  and  confirmed  by 
ordinance  before  they  come  under 
the  control  of  council.  This  section 
was  not  intended  to  withdraw  from 
control  of  council  such  streets  as 
are  already  established  by  public 
use  and  by  the  acts  of  the  city  au- 
thorities improving  them.  Steuben- 
ville  v.  King,  23  O.  S.  610;  R.  R. 
v.  Defiance,  10  C.  C.  27,  32  (affirm- 
ed, 52  O.  S.  262). 

Does  not  abolish  common  law 
dedication. —  Notwithstanding  the 
provisions  of  §  2650,  there  may  be 
an  offer  of  dedication  and  an  ac- 
ceptance by  public  use  under  the 
principles  of  common  law;  although, 
under  §  2650  no  liability  attaches 
to  the  municipality  to  keep  such 
highway  in  repair  till  after  ordi- 
nance passed.  Winslow  v.  Cincin- 
nati, 6  N.  P.  47,  53 ;  affirmed,  53  O. 
S.  665. 

Applies  only  to  streets  or  alleys. — 
This  section  does  not  apply  to  a  ded- 
ication of  a  park  to  a  municipality. 
Abraham  v.  Cincinnati,  13  Dec.  619. 
Kinds  of  dedication.—  Valid 
dedication    of    property    for    street 


purposes  may  be  made  either  (a) 
according  to  the  rules  of  common 
law,  or  (6)  under  the  statute.  See 
Fulton  v.  Mehrenfeld,  8  O.  S.  440; 
Sullivan  v.  Columbus,  12  Dec.  650. 

Common    law     dedication. —  In 

case  of  a  common  law  dedication, 
there  must  be  not  only  a  dedication 
to  public  uses  by  the  owner,  but  also 
an  acceptance  by  the  public.  Such 
a  dedication  operates  by  way  of 
estoppel  and  not  as  a  grant  or  trans- 
fer of  interest.  Fulton  v.  Mehren- 
feld, 8  O.  S.  440;  Sullivan  v.  Co- 
lumbus, 12  Dec.  650;  Abraham  v. 
Cincinnati,  13  Dec.  619. 

The  dedication  and  acceptance 
may  be  shown  by  acts  and  declara- 
tions of  the  parties  and  surround- 
ing circumstances.     76. 

But  the  intention  to  make  a  dedi- 
cation must  be  shown  by  acts  clearly 
evincing  such  intent.  Webber  v.  To- 
ledo, 3  C.  C.  (N.  S.)  319;  23  C.  C. 
237. 

A  defective  statutory  dedication 
in  evidence,  as  an  act  in  pais,  of  a 
dedication  at  common  law  by  the 
owner.  Daiber  v.  Scott,  3  C.  C. 
313. 

Intention  to  dedicate.  —  As  to 
what  will  constitute  an  intention 
to  dedicate  sufficient  to  show  a  com- 
mon law  dedication,  see  Penquite  v. 
Lawrence,  11  O.  S.  274  (acquies- 
cence in  public  use)  ;  Wisby  v.  Bon- 
te,  19  O.  S.  238;  Daiber  v.  Scott,  3 
C.  C.  313  (accepting  lots  of  subdi- 
vision platted  with  streets)  ;  Lock- 
land  v.  Smiley,  26  O.  S.  94,  100. 
(description  in  a  deed  of  property  as 
bounding  on  a  street ) ,  Schlemmer  v. 
Furniture  Co.,  7  C.  C.  (N.  S.  468; 
15  Dec.  92;  2  N.  P.  (N.  S.)  293 
(describing  property  as  an  "alley" 
and  its  use  by  public  as  such)  ;  Ry. 
Co.  v.  Cleveland,  1  N.  P.  1; 
(allotment  in  partition  reserv- 
ing rights  of  way  not  a  dedi- 
cation, though  rights  of  way 
are     open     to    public     use)  ;    Boer- 


Code  §  28] 


STREETS.       DEDICATION. 


129 


es  v.  Strader,  1  C.  S.  C.  R.  57, 
(merely  having  property  open  to 
public  as  a  wharf,  not  a  dedica- 
tion) ;  Macneale  v.  Cincinnati,  8  B. 

324,  (purchase  of  lot  described  as 
abutting  on  street  and  strip  called 
street  used  by  public  for  long  per- 
iod) ;    Duffy   v.    Norwood,   3   N.   P. 

325,  (call  for  a  street  in  deed,  and 
public  use  of  the  street)  ;  Cherry  v. 
Howe,  17  C.  C.  246,  (leaving  strip 
off  end  of  lot  open  to  afford  access 
to  owners'  tenants,  not  a  dedica- 
tion) j  Millikin  v.  Bowling  Green, 
9  C.  C.  493,  (owner  putting  down 
board  walk  on  his  own  property, 
but  bordering  a  street  whose  lines 
are  unmarked  not  a  dedication)  ; 
Winslow  v.  Cincinnati,  6  N.  P.  47, 
(attaching   to    donor's   will   a    plat 

with  street  marked  on  it)  ;  Toledo 
v.  Ry.  Co.,  17  C.  C.  265,  279;  Myers 
v.  Toledo,  18  C.  C.  817,  (co-owners 
partitioning  by  making  a  plat  show- 
ing streets)  ;  Toledo  v.  Converse,  21 
O.  C.  239,  (making  a  plat  showing 
a  triangular  piece  of  ground  colored 
as  streets  are  colored  on  the  map, 
and  having  no  lot  number,  but  not 
within  dimensions  of  streets  map- 
ped and  no  taxes  being  paid  on  the 
strip,  do  not  show  intention  to  dedi- 
cate); Deutsch  v.  Chemical  Co.,  8 
N.  P.  428,  (having  a  private  right 
of  way  open  to  the  public  for  sev- 
eral years,  but  having  a  sign  "  Pri- 
vate Property,"  etc.,  not  a  dedica- 
tion) ;  Eagle,  etc.,  Co.  v.  Cincinnati, 
1  C.  S.  C.  R.  154,  (reserving,  in  a 
lease,  part  of  property  abutting  on 
alley  "  for  private  street "  but  the 
strip  being  used  by  the  public  for 
30  years.)  ;  Cincinnati  v.  McMakin, 
38  B.  261  (a  covenant  in  a  deed  to 
dedicate  a  certain  strip  on  demand 
not  enforceable  by  the  city)  ;  Web- 
ber v.  Toledo,  23  C.  C.  237  (fact 
that  owner  of  property,  a  part  of 
which   is  appropriated  to  widen  a 


street,  puts  down  sidewalks,  either 
voluntarily  or  by  order  of  city,  not 
to  be  construed  as  intention  to  dedi- 
cate) ;  Wright  v.  Oberlin,  23  C.  C. 
509  (a  map,  though  not  acknowl- 
edged or  recorded,  may  bind  parties 
to  a  dedication,  and  a  dedication 
may  be  made  by  allowing  public  to 
use  the  property). 

Where  boundary  line  of  street 
dedicated  is  in  dispute,  what  evi- 
dence will  establish  true  line,  see 
Mooren  v.  Cleveland,  15  Dec.  456. 

Acceptance. —  Acceptance  is  neces- 
sary to  constitute  dedication.  Lun- 
kenheimer  v.  Cincinnati,  23  C.  C. 
617. 

As  to  what  will  constitute  an  ac- 
ceptance, so  as  to  complete  a  dedi- 
cation according  to  the  rules  of 
common  law,  see  Doren  v.  Horton,  1 
Disney  401,  (acts  of  possession  and 
use  by  public)  ;  Dick  v.  Toledo,  11 
C.  C.  349,  350,  (a  city  ordinance 
accepting)  ;  Winslow  v.  Cincinnati, 
6  N.  P.  47  (acceptance  not  measur- 
able by  any  standard  and  any  use 
naturally  following  from  the  na- 
ture of  the  place,  is  sufficient)  ; 
Millikin  v.  Bowling  Green,  9  C.  C. 
493,  (uses  by  public  outside  estab- 
lished lines  of  street)  ;  Toledo  v. 
Converse,  21  C.  C.  239,  (persons 
driving  outside  lines  of  street  and 
over  property  claimed  to  be  dedicat- 
ed not  an  acceptance)  ;  Ry.  Co.  v. 
Carthage,  36  O.  S.  631,  (ordinance 
providing  for  use  of  street  by  rail- 
way) ;  Lough  v.  Machlin,  40  O.  S. 
332,  (alley  on  recorded  plat  after- 
wards vacated  by  ordinance,  not  ac- 
ceptance). 

Estoppel. —  No  estoppel  on  muni- 
cipality to  claim  dedication  because 
of  assessment  and  taxation  of  land 
claimed.  Reynolds  v.  Newton,  14 
C.  C.  433 ;  but  see,  contra,  Toledo  v. 
Converse,  21  C.  C.  239,  and  Lunken- 
heimer  v.  Cincinnati,  3  C.  C.  (N.  S.) 
143;  23  C.  C.  617.  Deed  of  dedica- 
tion estops  persons  under  it  from 
denying  existence  of  highway,  al- 
though highway  is  not  such  in  sense 


130 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    28 


that  public  must  repair.  Hayes  v. 
Park  Co.,  13  Dec.  67.  See  further 
Abraham  v.  Cincinnati,  13  Dec.  619. 
Statutory  dedication. —  In  the 
case  of  a  statutory  dedication,  there 
must  be  some  form  of  grant  or  trans- 
fer to  the  municipality,  and  all  the 
statutory  requirements  must  have 
been  complied  with.  Sullivan  v. 
Columbus,  12  Dec.  650;  Abraham  v. 
Cincinnati,  13  Dec.  619. 

A  statutory  dedication  may  be 
made  either: 

(a)  By  the  platting  commission 
making  a  plat  (see  §  142  of  the 
Code ) ,  and  the  owner  accepting  the 
plat,  as  provided  in  §  2634  R.  S.,  or 
(6)  By  the  owner  making  a  plat 
as  provided  in  §  2601  R.  S. 

As  to  what  is  necessary  to  con- 
stitute a  statutory  dedication,  see 
Stephenson  v.  Leesburg,  33  0.  S. 
475,  (imperfect  plat)  ;  Satchell  v. 
Doram,  4  O.  S.  542,  (plat  not  duly 
executed  not  per  se  evidence  of  al- 
ley) ;  Lockland  v.  Smiley,  26  O.  S. 
94,  (imperfect  plat  not  duly  ac- 
knowledged not  a  statutory  dedica- 
tion) ;  Doren  v.  Horton,  1  Disney 
401,  (recorded  plat  without  ac- 
knowledgment does  not  dedicate)  ; 
Ashley  v.  Toledo,  13  C.  C.  1,  (subdi- 
vision acknowledged  only  by  owners 
of  one-sixteenth  of  tract)  ;  Rey- 
nolds v.  Newton,  14  C.  C.  433  (plat 
not  signed  by  all  owners,  but  all 
parties  to  a  subsequent  partition)  ; 
Sullivan  v.  Columbus,   12  Dec.  650, 


(immediate  improvement  not  neces- 
sary ) . 

Grantee  in  esse  not  necessary 
to  a  dedication.  William  v.  Socie- 
tv,  1  O.  S.  478;  Brown  v.  Manning. 
6  O.  298. 

Condition  in  a  dedication  does 
not  invalidate  it,  but  the  condition 
becomes  inoperative.  Richards  v.  Cin- 
cinnati, 31  O.  S.  506.  And  see  Lloyd 
v.  Hulbert,  1  C.  S.  C.  R.  228. 

Dower  cannot  be  claimed  in 
lands  dedicated  to  public  use. 
Gwynne  v.  Cincinnati,  3  O.  24. 

What  dedication  includes. — 
Dedication  of  land  for  street  pur- 
poses carries  with  it  the  right  to 
remove  lateral  support  of  the  resi- 
due in  the  improvement  of  the  street. 
Ross  v.  Cincinnati,  24  C.  C.  43  ( aff'd 
67  O.  S.  521)  ;  but  see  Cincinnati  v. 
Skinner  et  al.,  12  Dec.  735;  and  see 
also  Grant  v.  Hyde  Park,  47  B.  831. 
and  Tenney  v.  Cincinnati,  24  C.  C. 
237  (aff'd  67  O.  S.  518),  holding 
that  where  property  is  condemned 
for  street  purposes  the  inquiry  em- 
braces not  only  an  ascertainment  of 
compensation  to  the  land  owner  for 
the  land  taken,  but  damages  to  the 
residue  of  his  abutting  land  which 
may  result  from  the  grading  of  the 
street. 

Agreement  to  dedicate,  made 
with  grantees  of  lots  in  neighbor- 
hood, whether  municipality  can  take 
advantage  of,  see  Abraham  v.  Cin- 
cinnati, 13  Dec.  619. 


Sec.  2651  R.  S.  [Power  of  villages  to  procure  material  to  im- 
prove streets.]  The  councils  of  villages,  where  material  for 
graveling  and  macadamizing  the  streets  must  be  transported  by 
rail,  shall  have  like  power  with  county  commissioners  in  case  of 
turnpike  roads.      [67  v.  52,  §  2.] 


(c)      Vacation  of  Streets  by  Council.1 

Sec.  2652  R.  S.  [Vacation  of  streets,  change  of  name,  etc,] 
The  council  of  any  city  or  village,  on  petition  by  any  person 
owning  a  lot  in  the  corporation  praying  that  a  street  or  alley  in 
the  immediate  vicinity  of  such  lot  may  be  vacated  or  narrowed, 


Code  §  28]  STKBETS.       VACATION   BY   COUNCIL.  131 

or  the  name  thereof  changed,  may,  upon  hearing,  and  upon 
being  satisfied  that  there  is  good  cause  for  such  change  of 
name,  vacation  or  narrowing,  that  it  will  not  be  detrimental  to 
the  general  interest,  and  that  the  same  should  be  made,  declare 
by  ordinance  such  street  or  alley  vacated,2  narrowed,  or  the 
name  thereof  changed  ;3  provided,  however,  that  where,  in  any 
city  or  village,  there  shall  be  two  or  more  streets,  avenues  or 
alleys  of  the  same  name,  the  council  may,  by  ordinance  and 
without  petition  therefor,  change  the  name  of  any  such  street, 
avenue  or  alley,  so  as  to  leave  only  one  street,  avenue  or  alley 
to  be  designated  by  said  original  name;  and  provided,  also, 
that  when  in  the  opinion  of  the  council  there  is  good  cause  for 
vacating  or  narrowing  any  street  or  alley,  or  any  part  thereof, 
and  that  such  vacation  or  narrowing  will  not  be  detrimental 
to  the  general  interest,  council  may  by  ordinance  and  without 
petition  therefor,  vacate  or  narrow  such  street  or  alley  or  any 
part  thereof;  but  notice  of  the  intention  of  council  to  vacate 
any  street,  alley,  avenue,  or  part  thereof  shall,  in  all  cases,  be 
given  as  provided  in  section  2653  of  the  Revised  Statutes,  ex- 
cept when  there  is  filed  with  council  written  consent  to  such 
vacation  by  the  owners  of  the  property  abutting  the  part  of  the 
street  or  alley  proposed  to  be  vacated,  in  which  case  such  notice 
shall  not  be  required.  And  council  may  include  in  one  ordi- 
nance the  change  of  name,  or  the  vacation  or  narrowing,  of 
more  than  one  street,  avenue  or  allev.  [1906,  April  16,  98  v. 
202;  90  v.  350;  67  v.  78,  §491.] 

( 1 )  For  vacation  of  streets  by  council.  Ry.  Co.  v.  Cummins,  34  B. 
court,  see  §  2655  R.  S.  et  seq.  301. 

(2)  Statutory  method  exclu-  Who  may  claim  damages. — 
sive. — Streets  and  highways  can  Owners  in  immediate  vicinity  of, 
be  abandoned  by  municipalities  only  but  not  abutting  on,  street  sought 
in  the  manner  provided  by  statute,  to  be  vacated,  cannot  claim  damages 
and  their  use  cannot  be  destroyed  for  vacation,  unless  specially  in- 
except  for  a  purpose  beneficial  to  jured.  In  re  Ry.  Co.,  19  C.  C.  308; 
the  public.  Ry.  Co.  v.  Elyria,  14  Doppas  v.  R.  R.  Co.,  19  C.  C.  582 
C.  C.  48,  52.  (atf'd  66  O.   S.   648). 

Streets  do  not  become  abandoned          t0  whom  vacated  streets  re« 
and    revert   to   original    proprietors       vert  _<see  notes  to  §  2654  R.  S. 
by  nonuser  or  misuser  by  the  mu-  /0\    /-*«_  *  n «;i 

nicinalitv    Williams  v   Presbvterian  (3)    Change  °f  name.--Council 

mcipaiity     Williams  v.  rresDytenan       cannot  change  the  name  of  a  street 

society,  i  u.  o.  4/s.  without  good  cause,  except  on  peti- 

Part    of    county    road    brought  tion  of  abutting  owners.     Miller  v. 

within   limits  of  a  municipality  by  Cincinnati,  21  B.  121    (edit.). 

annexation,    cannot    be    vacated    by 


FORM  OF  PETITION  TO  VACATE  STREET,  ETC. 

To  the  council  of  the  city  [or  village]  of ,State  of  Ohio: 

The  undersigned,  owners  of  lots  in  the  city  [or  village]  of y 

in  the   immediate  vicinity  of street,   from to 


132  the  ohio  municipal   code.  [Code  §  28 

respectfully  petition  your  honorable  body  that 

street  may  be  vacated  between  the  points  named,  for  the  reason  that  it 
is  no  longer  of  use  to  the  public  and  its  vacation  will  not  be  detrimental 
to  the  general  interest. 

Owner  of  lot  No 

Owner  of  lot  No 

Etc. 
( If  it  is  desired  to  have  an  alley  vacated,  or  a  street  or  alley  widened  or 
the  name  changed,   the  above  form  may  be   adapted  to  suit  the   circum- 
stances. )* 

Sec.  2653  R.  S.     [Notice  of  application  to  be  published,  etc.] 

"ISTo  street  or  alley  shall  be  vacated  or  narrowed  as  aforesaid, 
unless  notice  of  the  pendency  and  prayer  of  the  petition  be  given 
by  publishing  the  same  in  some  newspaper  published  or  of 
general  circulation  in  such  municipal  corporation,  for  six  con- 
secutive weeks  preceding  action  on  such  petition,  or,  where  no 
newspaper  is  published  in  the  corporation,  by  posting  the  notice 
in  three  public  places  therein  six  weeks  preceding  such  action ; 
and  action  thereon  shall  take  place  within  three  months  after 
the  completion  of  the  notice.  [67  v.  78,  §  492;  (S.  &  C 
1531).] 

FORM    OF    NOTICE. 

Notice  is  hereby  given  that  a  petition  by  owners  of  lots  in  the  immediate 

vicinity  of street  has  been  presented  to  the  council  of  the 

city   [or  village]    of ,  praying  for  the  vacation  of  said 

street,  from to ;    and  that  said  petition  is 

now  pending  before  said  council  and  final  action  thereon  according  to  law 

will  be  taken  on  and  after 19 ...  .    (not  less  than  six  weeks 

after  date  of  first  publication  nor  more  than  three  months  after  completion 
of  notice). 


.19 

Clerk  of  the  city   [or  village]    of. 


FORM    OF    ORDINANCE    TO    VACATE    STREET. 

Ordinance  No 

To  vacate street,   from to 

Whereas,  on  the day  of 19 .... ,  a  petition 

by  persons  ow.ning  lots  in  the  immediate  vicinity  of street 

from to was  duly  presented  to  council  pray- 
ing that  said  street,  between  the  points  named,  be  vacated;  and  notice  of 
the  pendency  and  prayer  of  said  petition  has  been  given  as  required  by 
law,  by  publication  in ,  a  newspaper  of  general  circu- 
lation in  the  corporation,  for  six  consecutive  weeks  ending 

19 ;  and, 


Code  §  28]  STREETS.      VACATION  BY   COUNCIL. 


133 


Whereas,  council,  upon  hearing,  is  satisfied  that  there  is  good  cause 
for  such  vacation  as  prayed  for,  that  it  will  not  be  detrimental  to  the 
general  interest,  and  ought  to  be  made,  now  therefore, 

Be  it  ordained  by  the  council  of  the  city  [or  village]  of 

State  of  Ohio,  Sec.  1:     That street  from 

to be  and  the  same  is  hereby  vacated. 

Sec.  2.:  That  this  ordinance  be  and  remain  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed 19 

,  President  of  Council. 

Attest:      

Clerk. 

Sec.  2654  R.  S.  [Effect  of  order  of  vacation,  etc.]  The  order 
of  the  council  vacating  or  narrowing  any  street  or  alley  which 
has  been  dedicated  to  public  use  by  the  proprietor,  shall,  to  the 
extent  to  which  the  same  is  vacated  or  narrowed,  operate  as  a 
revocation  of  the  acceptance  thereof  by  the  council;  but  the 
right  of  way  and  easement  therein  of  any  lot  owner  shall  not 
be  impaired  thereby.1     [66  v.  232,  §493.] 

(1)   To  whom  vacated  streets       means  of  access  to  their  property. 


revert. — To  the  streets  of  a  city, 
the  municipality  holds  a  qualified 
or  determinable  fee.  The  limitation 
upon  the  title  necessarily  implies 
that  there  is  a  substantial  interest 
not  conveyed  which  will  revert  when 
the  street  is  vacated.  This  interest 
is  a  private  right  in  the  nature  of 
an  incorporeal  hereditament  legally 
attached  to  the  contiguous  grounds 
and  erections  on  them  (Crawford  v. 
Delaware,  7  O.  B.  459,  469 ;  Railway 
Co.  v.*  Cumminsville,  14  O.  S.  523 ; 
Ky.  Co.  v.  Lawrence,  38  O.  S  41) 
and  in  case  of  vacation  the  land  will 
go  to  the  owner  of  the  abutting 
property,  and  not  to  the  original 
owner  of  the  land  at  the  time  it 
was  dedicated  or  taken  for  street 
purposes.  Callen  v.  Electric  Light 
Co.,  66  O.  B.  166,  173;  Kinnear  Mfg. 
Co.  v.  Beatty,  65  O.  B.  264;  Stevens 
v.  Shannon,  6  C.  C.  142;  Hamilton 
G.  &  C.  Traction  Co.  v.  Parish,  67 
O.  S.  181,  190;  but  see  Lough  v. 
Maehlin,  40  O.  S.  332  (where  the 
street  dedicated  had  never  been  ac- 
cepted, and  the  abutting  owner's 
deed  did  not  give  title  to  the  middle 
of  the  street). 

Conveyance  of  the  abutting  prop- 
erty, even  after  vacation,  conveys 
the  grantor's  interest  in  the  street, 
if  this  is  not  specially  reserved  in 
the  deed.  Kerr  v.  Commissioners, 
42  B.  193  (Supreme  Court,  not  re- 
ported ) . 

The  reverter  is  subject  to  such 
rights  as  other  property  owners 
have  in  the  property  as  a  necessary 


Kinnear  Mfg.  Co.  v.  Beatty,  65  O.  S. 
264;  Stevens  v.  Shannon,  6  C.  C. 
142.  And  property  owner  may  en- 
join obstruction  to  his  only  means 
of  access.     lb. 

But  a  property  owner  whose  land 
abuts  on  street,  a  part  of  which,  not 
in  front  of  his  property,  is  vacated, 
has  no  right  to  enjoin  the  obstruc- 
tion of  the  vacated  portion  by  the 
owners  to  whom  it  reverted,  where 
he  has  reasonable  access  co  his  prop- 
erty. He  must  suffer  a  special  in- 
convenience different  in  kind  from 
that  of  the  general  public,  before  he 
is  entitled  to  relief.  Kinnear  Co.  v. 
Beatty,  65  O.  S.  264. 

But  an  alley  vacated  by  council 
cannot  be  obstructed  by  petitioning 
owner  at  its  only  exit,  as  against 
a  non-petitioning  abutting  owner, 
without  furnishing  another  reason- 
able means  of  egress  therefrom,  not- 
withstanding non-petitioning  owner 
has  access  to  a  street  in  front  of  his 
lot.  Schlemmer  v.  Furniture  Co., 
2  N.  P.  (N.  S.)  293;  7  C.  C.  (N. 
S.)    468. 

Merely  failing  to  appear  and  pro- 
test against  vacation  does  not  estop 
non-petitioning  owner  from  enjoin- 
ing obstruction.     lb. 

Effect  of  section. — This  right 
which  other  lot  owners  have  by  law 
is  merely  preserved  by  this  section, 
and  it  does  not  create  any  new 
right.  Kinnear  Mfg.  Co.  v.  Beatty, 
65  O.  S.  264.  See  also  Schlemmer 
v.  Furniture  Co.,  15  Dec.  92;  2  N. 
P.    (N.   S.)    293. 


134  the  ohio  municipal   code.  [Code  §  28 

(d)     Vacation  of  Streets  by  Court. 

Sec.  2655  R.  S.  [Vacation  or  establishment  of  street  or  alley 
by  court.]1  On  petition  filed  in  the  Court  of  Common  Pleas  by 
any  person  owning  a  lot2  in  any  city  or  in  an  incorporated  or 
unincorporated  hamlet 3  or  village,  for  the  establishment  or 
vacation  of  a  street  or  alley  in  the  immediate  vicinity  of  such 
lot,  the  court,  upon  hearing,  and  being  satisfied  that  it  will  con- 
duce to  the  general  interests  of  such  city,  hamlet,  or  village, 
may  declare  such  street  or  alley  established  or  vacated ;  but  the 
remedy  shall  be  in  addition  to  those  prescribed  in  this  title.4 
[37  v.  44,  §  1 ;  76  v.  25,  §  15 ;  S.  &  C.  1487.] 

! 

(1)    Vacation    of    streets    by  See  Ry.  Co.  v.  Elyria,  14  C.  C.  48, 

council,    see    §  2652    R.    S.    et   seq.       52. 

SUP™-  No  authority  to  narrow  a  street 

When    section    applies.  —  lhe  * 

statutory   remedy   may  be   resorted  or  alley,  under  this  section.    Dorsch 

to  in  all  cases  where  there  has  been  v.  Glass  Co.,  74  O.  S.  (51  B. 

a    clear   non-user   of   the    street   by  183.) 

the   public    for    21    years.      Nail    &  (2     Munici      m     is  not  a  Iot 

Iron  Co.  v.   Furnace  Co.,  46  O.   S.  .   K        J 

544    549  owner   within   the    procedure   nere 

But  this  section  does  not  apply  provided  for.  In  re  vacation  Hotel 
where   the   city   never  had   title  to       Alley,  25  B.  89. 

the  parcels  sought  to  be  vacated  or  (3)     s  t      „  ut  f    ^ 

had  forfeited  title.     Miller  v.  Cm-  \/ 

cinnati,  5  C.  C.  583.  lets     under  §  1  of  the  Code- 

(4)  Refers  to  Title  XII.  K.  S. 

FORM  OF  PETITION  FOR  VACATION  OF  STREET. 

Court  of  Common  Pleas,    County,  Ohio, 

In  re  vacation  of 


. 


street.  '    Petition' 


Petitioner  represents  that  he  is  the  owner  of  lot  No on 

street  in  the  city  [or  village]  of ,  State  of  Ohio,  in  thd 

immediate  vicinity  of street  from 

to. in  said  city  [or  village]. 

Petitioner  further  represents  that  it  will  conduce  to  the  general  interest 

of  said  city  [or  village]   to  have  said street 

from to  vacated. 

Wherefore,  petitioner  prays  that  the  court  may  declare  said 

street  from to vacated. 


By 

His  attorney. 

[Verification.'] 


Code    §    28]  STREETS.       VACATION  BY  COURT. 


135 


(Petition  must  be  filed  at  least  40  days  previous  to  the  term  of  court  in 
which  the  hearing  is  to  be  had.) 

Sec.  2656  R.  S.  [Petition  for  vacation  or  establishment,  and 
notice  thereof.]  Notice  of  the  pendency,  object  and  prayer 
of  a  petition  for  the  vacation  or  establishment  of  a  street  or 
alley  as  aforesaid  shall  be  given  by  publication  in  some  news- 
paper, of  general  circulation  in  the  county  in  which  said 
street  or  alley  is  located,  for  four  consecutive  weeks  on  the  same 
day  of  the  week,  and  the  cause  may  be  heard  and  determined 
at  any  time  after  the  expiration  of  ten  days  from  the  date  of 
last  publication;  and  if  any  person  other  than  the  petitioner, 
owning  a  lot  in  the  immediate  vicinity  of  such  street  or  alley 
prayed  to  be  vacated  or  established,  claims  that  he  will  sustain 
damage  thereby  the  court  may  proceed  to  hear  proof  in  refer- 
ence thereto  and  may  render  judgment  against  the  petitioners 
for  such  damages  as  it  may  think  just,  and  the  same  shall  be 
assessed  by  the  court  against  the  petitioners  ratably  according 
to  the  value  of  the  property  owned  by  them  as  the  same  stands 
taxed  on  the  tax  list  of  the  county;  and  a  jury  may  be  de- 
manded as  in  other  cases;  and  when  necessary  the  court  shall 
appoint  a  guardian  ad  litem  for  all  minors  or  persons  of  un- 
sound mind  who  may  be  interested  in  the  premises.1  [95  v. 
449;  37  v.  44;  S.  &  C.  1488.] 


(1)  This  section  is  given  as 
amended  May  9,  1902.  (See  §  212 
of  the  Code.) 

Validity     of     section.— In     so 

far  as  this  section  authorizes  the 
court  to  assess  compensation  with- 
out a  jury,  it  is  unconstitutional. 
Cincinnati  v.  Hamilton  Co.,  1  Dis- 
ney, 4. 

Who  may  recover  damages. — 
Owners  of  lots  in  the  immediate 
vicinity  of,  but  not  abutting  on  the 
street  vacated,  cannot  recover  dam- 
ages for  such  vacation,  unless  they 
have  suffered  some  special  damage, 
different  from  that  of  the  general 
public.  In  re  C.  N.  0.  &  T.  P.  Ry., 
19  C.  C.  308;  Doppas  v.  R.  R.  Co., 
19  C.  C.  582  (aff'd  66  0.  S.  648)  ; 
Kinnear  Mfg.  Co.  v.  Beatty,  65  0.  S. 
264. 

Proof  of  frequent  use  of  vacated 


street  by  such  owners,  and  that  they 
would  be  greatly  inconvenienced 
does  not  show  such  special  injury, 
if  other  egress  is  possible.     lb. 

The  intended  use  of  the  street  by 
the  person  to  whom  it  will  revert 
as  evidence  of  lot  owner's  injury 
cannot  be  shown  in  action  under 
this  section.     75. 

Where  municipality  damaged. 
—  A  municipality  has  such  a  pro- 
prietary interest  in  its  streets,  as  to 
be  entitled  to  compensation  under 
this  section  if  it  suffers  special 
damage  by  reason  of  change  of 
drainage,  etc.  Cincinnati  v.  Hamil- 
ton, 1  Disney,  4. 

But  a  municipality  is  not  a  "lot 
owner "  within  the  procedure  pro- 
vided in  this  section  and  cannot  be 
heard  on  question  of  its  general 
damages,    such   as    an   ordinary   lot 


136  the  ohio  municipal   code.  [Code  §  28 

owner   would   suffer;    but  it   is   en-       change  of  drainage.     In  re  vacation 
titled  to  be  compensated  for  special       of  Hotel  Alley,  25  B.  89 
damage,    such    as    that    caused    by 


FORM   OF    NOTICE   OF   PETITION. 

Notice  is  hereby  given  that the  owner  of  a  lot  in  the 

immediate  vicinity  of street  from to 

in  the   city   {or  village]    of County, 

Ohio,  has  filed  a  petition  in  the  Court  of  Common  Pleas  of  said  county, 
alleging  that  it  will  be  conducive  to  the  general  interest  of  said  city   [or 

village]    to   have    said street    from to 

vacated,   and  praying  the  court  to  declare  said  street 

between  said  points  vacated. 

Said  petition  will  be  for  hearing  on  and  after 19 .... , 

the  first  day  of  the  next  term  of  said  court. 
19 


Attorney  for  petitioner. 

Sec.  2657 U.S.     [Street  not  to  be  closed  until  damages  paid.] 

A  street  or  alley  so  declared  vacated,  under  the  provisions  of 
this  subdivision,  shall  not  be  closed  or  obstructed  until  the  dam- 
ages so  assessed  shall  have  been  fully  paid  to  the  persons  entitled 
to  the  same.1      [37  v.  44,  §  3 ;  S.  &  C.  1488.] 


( 1 )    Injunction. —  Property    own-  injury.     Madden  v.  Ry.,  21  C.  C.  73, 

er  has  a  right  to  an  injunction  to  (aff'd  66  0.  S.  649)  ;  but  where  his 

prevent   the  closing  of  a   street  on  property  does  not  abut  on  the  street 

which  his  property  abuts,  by  vaca-  vacated  and  he  has  other  reasonable 

tion  or  obstruction,  if  the  street  is  means  of  access,  he  is  not  entitled 

cut  off  near  enough  to  his  property  to  injunction.     Kinnear  Mfg.  Co.  v. 

to   materially   affect  its  value,   un-  Beatty,  65  0.  S.  264. 
less  he  is  first  compensated  for  his 


(e)     Labor   Upon  Streets,1 

Sec.  2660  R.  S.     [Road  districts  and  street  commissioners.] 

The  board  of  public  service  shall  have  power  to  form  road  dis- 
tricts within  the  limits  of  the  corporation,  and  when  contigu- 
ous territory  is  attached  to  the  corporation  for  road  purposes, 
such  power  shall  extend  to  the  territory  so  attached;  and  the 
board  of  public  service  shall  employ  one  street  commissioner 
for  each  district,  and  prescribe  his  duties  and  fix  his  compen- 
sation.    [1906,  April  16,  98  v.  328;  87  v.  70;  66  v.  231.] 


Code  §  28]  STREETS.      LABOR  UPON.  137 

(1)    This    subject    was    formerly  Further  provisions  relating  to 

contained  in  Subdivision  IV.,  chap.  repair   of  streets   and  roads   within 

13,  Div.  8,  Title  XII.  R.  S.,  all  the  municipal    limits    will   be   found    in 

sections  of  which  are  retained  here.  Part  II.,  Title  XVI.,  "Streets." 

Sec.  2661 R.  S.     [Road    taxes,    how    collected    and    applied.] 

No  tax  assessed  upon  property  within  the  territory  attached  to 
any  corporation  as  aforesaid,  shall  be  applied  otherwise  than 
within  the  territory  in  which  the  same  is  assessed ;  and  all  taxes 
charged  for  road  purposes  on  the  property  within  the  limits  of 
the  corporation,  or  the  territory  so  attached,  and  collected  by  the 
county  treasurer,  shall  be  paid  over  to  the  corporation  treasurer, 
to  be  specially  appropriated  by  the  council  to  street  and  road 
purposes  within  the  corporate  limits  and  territory  so  attached", 
and  the  trustees  of  the  township  in  which  such  territory  is 
located,  and  the  council,  may  agree  upon  a  different  distribu- 
tion or  division  of  the  funds.1  [66  v.  231,  §  487;  (S.  &  S. 
840).] 

( 1 )  See  Lima  v.  McBride,  34  O.  S.  338. 

Sec.  2662  R.  S.  [Attachment  of  contiguous  territory  for  road 
purposes.]  It  shall  be  the  duty  of  the  council,  and  the  trustees 
of  townships,  respectively,  in  which  any  such  corporation  is 
situated,  when  the  same  has  not  already  been  done,  where  from 
the  sparseness  of  population  the  public  interest  requires  it,  to 
attach  to  the  corporation  any  territory  lying  contiguous  thereto, 
for  the  purposes  mentioned  in  this  subdivision ;  and  any  portion 
of  territory  so  attached  may  be  detached,  and  replaced  under 
the  control  of  the  township  trustees  for  road  purposes,  by  the 
council,  with  the  concurrence  of  the  township  trustees.  [67  v. 
78,  §  488;  (S.  &  S.  840;  S.  &  C.  1556).] 

Sec.  2664  R.  S.  [Exemption  from  provisions  of  this  subdivi- 
sion.] Persons  who  are  or  may  be  exempt  from  performing 
labor  on  the  public  highway,  shall  not  be  subject  to  the  provi- 
sions of  this  subdivision.1      [66  v.  231,  §  490;  (S.  &  S.  840).] 

( 1 )    See  note  ( 1 )  to  §  2660  supra. 

Sec.  (2664 — 1)  R.  S.  §  1.  [Labor  upon  streets,  etc.,  of  munic- 
ipality; who  liable;  exemptions.]  The  council  of  any  munici- 
pal corporation  may  require  each  able-bodied  male  person  be- 
tween the  ages  of  twenty-one  and  fifty-five  years,  resident  of  the 
corporation,  or  territory  attached  as  in  this  subdivision  A  pro- 
vided, to  perform  by  himself  or  substitute,  in  each  year,  two 
days'  labor  upon  the  streets  and  alleys  of  such  corporation,  or 
Vipon  the  public  roads  or  highways  that  lie  with  [in]  such  at- 


138  the  ohio  municipal   code.  [Code  §  28 

tached  territory,  which  labor  shall  be  in  lieu  of  the  two  days'  la- 
bor required  to  be  performed  upon  roads  and  highways ;  provid- 
ed, that  active  members  of  volunteer  engine  companies  not 
exceeding  sixty-four,  of  hook  and  ladder  companies  not  ex- 
ceeding thirty,  and  of  hose  companies  not  exceeding  twenty, 
shall  be  exempt  from  the  performance  of  such  labor  during 
such  membership,  and,  having  served  faithfully  as  such  for 
five  consecutive  years,  shall  be  exempt  for  five  years  thereafter ; 
and  provided  further,  that  such  labor  may  be  commuted  by  the 
payment  of  three  dollars  ($3.00)  to  be  expended  where  the 
labor  should  have  been  applied.      [92  v.  162.] 

( 1 )    See  note  ( 1 )  to  §  2660  supra. 

Sec.  (2664 — 2)  R.  S.  §  2.  [Fines,  etc.,  to  which  delinquent 
liable.]  Upon  the  refusal  to  perform  such  work  under  the 
proper  street  commissioner,  or  other  officer  appointed  by  the 
council,  the  delinquent  shall  be  liable  to  the  same  fines,  penal- 
ties, and  forfeitures  as  are  provided  against  persons  refusing  to 
perform  two  days'  labor  upon  the  roads  and  highways  in  other 
cases ;  and  the  same  shall  be  recovered  in  the  name  of  the  cor- 
poration, before  the  mayor  thereof.      [92  v.  162.] 

Sec.  (2664—3)  R.  S.  §  3.  [Collection  of  fines,  etc.]  The  street 
commissioners,  or  other  proper  officers,  shall  have  power  to  col- 
lect by  suit,  all  fines,  forfeitures  and  penalties  arising  under  the 
provisions  of  this  subdivision,  and  they  are  hereby  authorized 
and  required,  before  their  annual  settlement  with  the  council, 
to  prosecute  to  final  judgment  all  persons  neglecting  or  refusing 
to  comply  with  the  provisions  of  this  subdivision,  from  whom, 
in  the  opinion  of  such  street  commissioners  or  other  proper 
officers,  such  fine,  penalty  of  [or]  forfeiture  can  be  collected. 
[92  v.  162.] 

Sec.  (2664 — 4)  R.  S.  §  4.  [Labor  upon  highways  within  road 
district;  who  liable;  exemptions.]  All  male  persons  between 
the  age  of  twenty-one  and  fifty-five  years,  able  to  perform  or 
cause  to  be  performed  the  labor  herein  required,  except  every 
honorably  'discharged  soldier  who  served  in  the  United  States 
army  during  the  actual  war,  pensioners  of  the  United  States 
government,  acting  and  contributing  members  of  companies, 
troops  and  batteries  of  the  Ohio  national  guard  during  their 
membership,  and  any  person  who  is  a  member  of  any  fire  en- 
gine, hook  and  ladder,  hose,  or  other  company,  for  the  extin- 
guishment of  fire  or  the  protection  of  property  at  fires,  under 
the  control  of  the  corporate  authorities  of  any  municipal  cor- 


Code  §  28]         STREETS.   LABOR  UPON.  139 

poration,  and  who  receives  no  pay  for  such  services  during  the 
time  he  may  continue  an  acting  member  of  such  company,  shall 
be  liable  annually,  to  perform  two  days'  labor  on  the  high- 
ways, under  the  direction  of  the  street  commissioner  or  road 
superintendent  of  the  road  district  in  which  he  resides.1  [1906, 
April  16,  98  v.  328;  92  v.  162;  R.  S.  of  1880,  §  4717.] 

(1)   Validity. — This  and  succeed-       §4717   held  constitutional.     Dennis 
ing    sections    are    nearly    identical       v.  Simon,  51  O.  S.  233. 
with  former   §§4717  to  4728  R.  S. 

Sec.  (2664^-5)  R.  S.  §  5.  [Payment  of  money  in  lieu  of  la- 
bor.] But  if  a  person,  being  warned  as  hereinafter  provided, 
pay  to  the  street  commissioner  or  the  road  superintendent  in 
whose  district  he  resides  the  sum  of  three  dollars  within  three 
days  after  being  notified  by  the  street  commissioner  or  road  su- 
perintendent, the  same  shall  be  received  in  lieu  of  the  two  days' 
labor,  and  the  same  shall  be  paid  by  such  street  commissioner 
or  road  superintendent  to  the  municipal  treasurer  or  to  the 
township  treasurer,  as  the  case  may  be,  and  placed  in  the  fund 
for  the  improvement  of  the  roads  in  the  township  or  municipal- 
ity in  which  such  person  resides.  [1906,  April  16,  98  v.  328; 
92  v.  162;  R.  S.  1880,  §  4717.] 

Sec.  (2664^-6)  R.  S.  §  6.  [Ordering  out  of  persons  liable; 
penalty  for  failure  to  obey  order,  etc.]  Each  street  commis- 
sioner or  road  superintendent  shall  order  out  every  such  per- 
son resident  in  his  district  between  the  fifteenth  day  of  April 
and  the  first  day  of  July  annually,  and  direct  him  to  do  and 
perform  the  work  aforesaid  on  the  public  roads  within  the  dis- 
trict ;  the  order  shall  be  given  to  each  person  at  least  two  days 
prior  for  the  performance  of  the  labor,  either  personally,  or  by 
written  notice  left  at  his  usual  place  of  abode ;  and  if  any  per- 
son so  notified  who  is  liable  to  perform  such  labor,  refuses  or 
neglects  to  attend,  by  himself  or  substitute,  to  the  acceptance 
of  the  street  commissioner  or  road  superintendent,  or  having 
attended,  refused  to  obey  the  directions  of  the  street  commis- 
sioner or  road  superintendent,  or  spend  the  time  in  idleness  or 
inattention  to  the  duties  assigned  him,  he  shall  forfeit  and  pay 
the  sum  of  one  dollar  for  every  such  offense,  and  shall  further 
be  liable  in  all  cases  of  non-attendance,  to  the  amount  allowed 
for  two  days'  work,  to  be  recovered  by  action  before  a  justice 
of  the  peace  of  the  proper  township,  at  the  suit  of  the  street 
commissioner  or  road  superintendent  within  whose  district  he 
resides.  [1906,  April  16,  98  v.  329;  92  v.  162;  R.  S.  1880, 
§  4721.] 

Sec.  (2664 — 7)  R.  S.  §  7.  [Non-exemption  against  execu- 
tion.] The  defendant  shall  be  entitled  to  any  exemption  under 
any  of  the  laAvs  of  this  state  against  execution  issued  on  any 
judgment  and  the  costs  secured  under  the  provisions  of  this 
chapter.1     [1906,  April  16,  98  v.  329;  92  v.  162.] 


140  the  ohio  municipal  code.  [Code  §  28 

(1}  This  refers  to  the  chapter  on  S.,  of  which  those  sections  not  re- 
"Streets"  formerly  chap.  13,  Div.  8,  pealed,  are  retained  by  §  28  of  the 
Title  Xll.,  §§  2640  to   (2664-14)   R.       Code. 

Sec.  (2664—8)  R.  S.  §  8.  [Non-release  by  neglect  to  order 
out;  directions  governing  time  of  performance.]  No  person 
shall  be  released  from  performance  of  labor  on  the  public  high- 
way by  reason  of  neglect  of  any  street  commissioner  or  road 
superintendent  to  order  him  out  on  or  before  the  first  day  of 
July.  The  trustees  of  any  township  or  the  board  of  public  ser- 
vice of  any  municipality  may  direct  the  time  when  the  labor 
shall  be  performed,  and  shall  cause  all  road  superintendents 
or  street  commissioners,  as  the  case  may  be,  in  their  respective 
townships  or  municipalities,  as  the  case  may  be,  to  perform  all 
work  on  the  public  roads  in  such  a  manner  and  in  such  time 
and  at  such  places  as  the  township  trustees  or  the  board  of  pub- 
lic service  of  the  municipality  mav  direct.  [1906,  April  16,  98 
v.  329;  92  v.  162;  R.  S.  1880,  §  4722.] 

Sec.  (2664—9)  R.  S.  §  9.  [Production  or  non-production  of 
certificate  in  case  of  removal.]  If  a  person  removed  from  one 
district  to  another  between  the  first  day  of  April  and  the  fif- 
teenth day  of  November  who  has  prior  to  such  removal,  per- 
formed the  whole  or  any  part  of  the  labor  aforesaid,  or  in  any 
other  way  has  paid  the  whole  or  any  part  of  the  amount  afore- 
said in  lieu  of  such  labor,  and  produce  a  certificate  of  the  same 
from  the  street  commissioner  or  road  superintendent  of  the 
proper  district,  such  certificate  shall  be  a  complete  discharge 
for  the  amount  therein  specified;  but  without  producing  such 
certificate  he  shall  be  required  to  perform  two  days'  labor,  or 
such  part  thereof  as  he  has  not  performed  under  the  direction 
of  the  street  commissioner  or  road  superintendent.  [1906, 
April  16,  98  v.  329;  92  v.  162;  R.  S.  1880,  §  4723.] 

Sec.  (2664—10)  R.  S.  §  10.  [Appearance  with  required  im- 
plements, etc.]  Any  person  called  upon  to  perform  labor  upon 
the  public  roads  and  highways  under  the  provision  of  this 
chapter  shall  by  himself  or  substitute,  appear  at  the  place  ap- 
pointed by  the  street  commissioner  or  road  superintendent  at 
the  hour  of  seven  o'clock  in  the  forenoon  with  such  necessary 
tools  and  implements  as  the  street  commissioner  or  road  super- 
intendent may  direct;  and  the  street  commissioner  or  road 
superintendent  may,  if  necessary  for  the  improvement  of  the 
road,  require  any  person  owning  the  same  to  furnish  a  team 
of  horses,  mules,  or  oxen,  and  wagon,  cart,  plow,  or  scraper, 
to  be  employed  and  used  on  the  roads  under  the  direction  of 
the  street  commissioner  or  road  superintendent.  [1906,  April 
16,  98  v.  330;  92  v  162;  R.  S.  1880,  §4723.] 

Sec.  (2664—11)  R.  S.  §  11.  [Residence.]  For  the  purposes 
provided  for  in  the  preceding  sections,  the  residence  of  any 


Code  §  28]  STREETS.       LABOR   UPON.  141 

person  who  has  a  family  shall  be  held  to  be  where  his  family 
resides,  and  the  residence  of  any  (other)  person  shall  be  held 
to  be  where  he  boards  in  any  road  district.  [92  v.  162 ;  R.  S.  of 
1880,  §  4725.] 

Sec.  (2664—12)  R.  S.  [Collection  of  fines,  etc.]  Road  super- 
intendents or  street  commissioners  within  their  respective  dis- 
tricts, shall  collect,  by  suit  or  otherwise,  all  fines,  forfeitures, 
and  penalties  arising  and  accruing  under  the  provisions  of  this 
chapter,  unless  the  collection  thereof  is  otherwise  herein  pro- 
vided for;  and  they  are  hereby  required  before  their  settle- 
ment with  the  township  trustees,  to  prosecute  to  final  judgment 
all  persons  neglecting  or  refusing  to  comply  with  the  provisions 
of  this  chapter,  from  whom  such  fine,  forfeiture,  or  penalty, 
in  the  opinion  of  the  municipal  board  of  public  service  or  town- 
ship trustees,  can  be  collected  by  execution;  and  the  judg- 
ments, if  not  paid  together  with  the  costs  thereon,  shall  remain 
and  be  in  force  against  the  judgment  debtor,  as  other  judg- 
ments at  law.  And  the  costs  incurred  by  any  road  superin- 
tendent in  any  suit  brought  under  this  chapter,  when  the  same 
is  not  collected  from  the  defendant,  shall  be  paid  by  the  trus- 
tees of  the  township  out  of  the  township  general  fund;  if  the 
costs  be  incurred  by  any  street  commissioner  in  any  suit 
brought  under  this  chapter,  when  same  is  not  collected  from 
the  defendant,  shall  be  paid  by  the  municipality  out  of  the 
municipal  general  fund.  [1906,  April  16,  98  v.  330;  92  v.  162; 
R.  S.  1880,  §  4726.] 

Sec.  (2664—13)  R.  S.  [Disposition  of  moneys  collected;  re- 
ports; prosecution  of  delinquents;  day  labor  may  be  em- 
ployed.] Street  commissioners  and  road  superintendents  shall 
pay  into  the  road  fund  of  the  municipality  or  of  the  township 
in  which  such  street  commissioner  or  road  superintendent  is 
employed,  all  money  by  them  collected;  and  all  fines  and  for- 
feitures sued  for  and  recovered  under  the  provisions  of  this 
chapter,  shall  be  paid  by  the  justice  of  the  peace  or  constable 
collecting  the  same  on  demand,  to  the  street  commissioner  or 
road  superintendent  of  the  road  district  wherein  the  fine  or 
forfeiture  accrued,  and  all  road  superintendents  and  street 
commissioners  shall  render  an  account  to  the  trustees  or  to  the 
board  of  public  service  of  the  municipality,  as  the  case  may  be, 
at  the  annual  settlement  of  all  moneys  received  by  them  and 
paid  into  the  municipal  or  township  treasury,  and  all  judg- 
ments that  remain  unpaid  and  the  name  of  the  judgment 
debtor,  and  the  justice  before  whom  such  judgments  were 
obtained,  and  the  amount  thereof,  and  the  trustees  shall  make 
such  order  as  to  the  prosecution  of  suits  by  the  road  superin- 
tendents or  street  commissioners,  as  the  case  may  be,  of  the 
proper  districts,  against  such  delinquents,  as  in  the  judgment 
of  the  trustees  the  interest  of  the  township  may  require.     The 


142 


THE  OHIO  MUNICIPAL  CODE. 


[Code  §  28. 


township  trustees  of  any  township  or  the  board  of  public  ser- 
vice of  any  municipality  may,  for  the  benefit  of  the  roads  and 
highways,  employ  day  labor  at  a  rate  not  to  exceed  seventeen 
and  one-half  cents  per  hour  for  each  hour  actually  employed 
and  for  the  employment  of  teams  at  a  rate  not  exceeding 
thirty-five  cents  per  hour  for  each  hour  actually  employed,  to 
be  paid  out  of  the  road  fund  of  the  township  or  municipality 
in  which  said  work  is  performed  as  other  bills  are  paid. 
[1906,  April  16,  98  v.  330;  92  v.  162;  R.  S.  1880,  §4727.] 

Sec.  (2664-14)  R.  S.  §  14.    Repealed,  98  0.  L.  341. 


(f)  Street  Railways.1 

Sec.  3437.  R.  S.  [Where  street  railways  may  be  construct- 
ed.] Street  railways2  with  single  or  double  tracks,  sidetracks, 
and  turnouts,  may  be  constructed  or  extended  within  or  with- 
out, or  partly  within  and  partly  without,  any  municipal  corpo- 
ration or  unincorporated  village;  and  offices,  depots,  and 
other  necessary  buildings  for  such  railways  may  also  be  con- 
structed.    [67  v.  10,  §  1;  (S.  &  S.  135).] 


(1)  Other  street  railway  laws. 

— For  other  laws  relating  to  street 
railways  in  municipal  limits,  see  §§ 
3439  to  3445  R.  S.,  inclusive,  and 
§§  2503  to  2505e  R.  S.,  inclusive, 
under  same  heading  in  Part  II.  See 
also  §  7  (paragraphs  9  and  28)  of 
the  Code. 

(2)  Definition. — A  street  rail- 
way is  a  railway  constructed  upon 
streets  or  highways  and  for  the  pur- 
pose of  facilitating  the  use  thereof 
by  the  public  in  the  transportation 
of  persons  and  property.  State  v. 
Dayton  Traction  Co.,  18  C.  C.  490. 

Steam  railroads  and  electric  rail- 
ways are  classified  and  recognized 
as  separate  and  distinct  from  each 
other  by  the  statutes  of  Ohio,  and 
statutes  relating  to  and  regulating 
the  former  are  inapplicable  to  the 
latter  unless  an  intention  to  the 
contrary  clearly  appears.  Dayton 
&  U.  Ry.  Co.  v.  Traction  Co.,  20 
C.  C.   1. 


But  while  a  railroad  and  a  street 
railway  are  distinct  and  different 
things,  the  distinction  is  not  that 
one  is  for  the  transportation  of  both 
persons  and  freight  and  the  other  for 
the  carrying  of  passengers  only. 
State  v.  Dayton  Traction  Co.,  18 
C.  C.  490;  04  O.  S.  272.  See 
also,  as  to  distinction,  Dayton 
&  U.  Ry.  Co.  v.  Traction  Co.,  20 
C.  C.  1;  Cleveland  &  Cincinnati  R. 
R.  Co.  v.  Cincinnati,  Cin.  Court  In- 
dex, Vol.  10,  No.  32  (aff'd  00  O.  S. 
039) ;  Traction  Co.  v.  Traction  Co., 
47  B.  854. 

It  is  immaterial  what  the  motive 
power  is  where  it  is  not  steam,  and 
that  the  cars  carry  freight  and 
mail,  if  they  stop  at  any  point  for 
passengers  and  the  rails  conform 
substantially  to  the  grade  of  the 
highway.  Dietz  v.  Traction  Com- 
pany, 4  N.  P.  399. 

Suburban  and  interurban  rail- 
roads are  street  railways  within  the 


Code  §  28] 


STREET    RAILWAYS. 


143 


meaning  of  laws  on  street  railways. 
C.  &  H.  Electric  Street  Railway  Co. 
v.  C.  H.  &  I.  Railroad  Co.,  21  C.  C. 
391 ;  C.  L.  &  A.  St.  Ry.  v.  Lohe,  68 
O.  S.  101;  C.  C.  C.  &  St.  L.  Ry.  Co. 
v.  U.  B.  &  N.  Ry.  Co.,  26  C.  C.  180. 
See  also  §  2780-17,  where  suburban 
and  interurban  railroads  whether 
operated  by  electricity,  animal  or 
other  motive  power  are  classed  as 
street  railroads.  But  see  Webber  v. 
Elec.  Ry.  Co.,  13  Dec.  194;  Mat- 
thews v.  Traction  Co.,  13  Dec.  311 
(25  C.  C.  652).  The  rules  of  negli- 
gence, however,  which  apply  to  ordi- 
nary street  railways  are  applicable 
to  interurban  railroads  only  when 
running  within  municipality;  when 
running  in  open  country  on  track 
like  steam  railroad  track  and  at 
high  rate  of  speed  the  rules  of  negli- 
gence applicable  to  steam  railroads 
should  apply.  C.  L.  &  A.  St.  Ry.  v. 
Lohe,  68  O.  S.  101,  110. 

A  traction  company  is  a  street 
railway  company  if  organized  for 
purpose  of  operating  interurban 
electric  road.  H.  G.  &  C.  Traction 
Co.  v.  Traction  Co.,  47  B.  854.  So  a 
grip  cable  road  was  held  to  be  a 
street  railroad.  Clement  v.  Cincin- 
nati, 16  B.  355. 

Street  railways  may  carry  freight. 
—  State  v.  Dayton  Traction  Co.,  64 
O.  S.  272. 

Not  an   additional  burden. —  A 

street  railroad  is  not  an  additional 
burden  upon  the  streets  of  a  munic- 
ipality requiring  compensation  to 
abutting  property  owners.  St.  Ry. 
v.  Cumminsville,  14  O.  S.  523;  Ovi- 
att  v.  Akron  St.  R.  R.  Co.,  2  N.  P. 
84;  Glidden  v.  Cincinnati,  30  B. 
213;  H.  G.  &  C.  Traction  Co.  v.  Par- 
ish, 67  O.  S.  181;  State  ex  rel  v. 
Columbus  Ry.  Co.,  24  C.  C.  609 ;  De- 
troit v.  Railway  Co.,  56  Fed.  867; 
Detroit  Railway  Co.  v.  Detroit, 
64  Fed.  628 ;  Akron,  etc.,  Co.  v.  Erie 
Ry.,  28  C.  C.  36;   7  C.  C.    (N.  S.) 


199;  C.  C.  C.  &  St.  L.  Ry.  Co.  v. 
Railway  Co.,  26  C.  C.  180  (aff'd 
73  O.  S.  364);  but  see  Weber  v. 
Electric  Railway  Co.,  13  Dec.  194; 
Anderson  v.  Columbus,  14  Dec.  180; 
1  N.  P.  (N.  S.)  541.  It  is  not  an 
additional  servitude  though  allowed 
any  motive  power  other  than  animal 
and  permitted  to  carry  freight. 
Dietz  v.  Traction  Co.,  4  N.  P.  399; 
and  changing  of  motive  power  to 
electricity  does  not  make  a  railway 
an  additional  servitude.  Pelton  v. 
East  Cleveland  Railroad,  22  B.  67. 
The  poles  and  wires  used  in  putting 
electric  railway  on  street  do  not  nec- 
essarily constitute  a  new  servitude. 
Simmons  v.  Toledo,  8  C.  C.  535,  558 
(aff'd  31  B.  367)  ;  and  where  rail- 
way is  properly  located  the  company 
is  not  liable  for  injury  to  trees 
made  necessary  by  construction  of 
road.  Keefe  v.  Ry.  Co.,  8  N.  P. 
466. 

Except  for  statutory  requirements 
of  consent  municipal  authorities  can 
grant  the  right  to  use  the  streets 
without  such  consent.  Transit  Co. 
v.  Traction  Co.,  12  Dec.  1;  H.  G.  C. 
Traction  Co.  v.  Parish,  67  O.  S.  181. 

But  while  a  street  railway  is  not 
an  additional  servitude  on  a  street 
entitling  the  abutting  owner  to  com- 
pensation, under  ordinary  circum- 
stances, yet  where  the  owner  is  de- 
prived of  the  means  of  ingress  and 
egress  to  his  property  and  the  same 
is  made  inconvenient  and  burden- 
some in  a  special  way  by  the  con- 
struction of  railway,  his  property 
rights  are  invaded  and  he  is  entitled 
to  compensation.  Akron,  etc.,  Ry. 
Co.  v.  Keck,  23  C.  C.  57;  Street 
Railway  v.  Cumminsville,  14  O.  S. 
523;  Bellaire,  etc.,  Street  Railway 
Co.  v.  Smith,  41  B.  212.  But  such 
rights  of  abutting  owners  are  not 
invaded  by  changing  street  railway 
from  single  to  double  track  even 
though   this  prevents  wagons   from 


143a 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  28 


standing  at  right  angles  to  curb 
while  cars  are  passing.  Miller  v. 
Railway  Co.,  13  Dec.  418. 

And  if  from  the  peculiar  nature 
of  the  abutting  owner's  business, 
his  trade  is  impaired  or  his  proper- 
ty rendered  less  desirable  by  the 
construction  of  the  street  railway, 
there  being  no  change  of  grade  or 
unnecessary  interference  with  the 
abutter's  easement,  this  is  damnum 
obsque  injuria.  Ireton  Bros.  v. 
Traction  Co.,  2  N.  P.    (N.  S.)    317. 

As  to  the  case  of  an  interurban 
railway,  constructed  on  "  T "  rails, 
on  the  side  of  a  highway  outside  of 
municipality,  see  Schaaf  v.  Railway 
Co.,  66  0.   S.  215. 

Character  of  occupation  of 
streets. —  As  to  correlative  rights 
of  vehicles  and  street  railways  in 
streets,  see  Lake  Shore  Railway  Co. 
v.  Majewski,  25  C.  C.  55;  Toledo 
Electric  St.  Ry.  Co.  v.  Westenhuber, 
22  C.  C.  67.  As  to  rights  of  pedes- 
trians and  vehicles  in  streets  where 
such  are  used  by  street  railways  in 
reference  to  questions  of  negligence, 
see  Toledo,  etc.,  Railway  Co.  v.  Gil- 
bert, 24  C.  C.  181  ;  Cincinnati  Street 
Ry.  Co.  v.  Snell,  54  O.  S.  197;  Cain 
V.  Traction  Co.,  13  Dec.  591.  As  to 
rights  of  street  railway  company 
and  abutting  owners  to  occupy 
street  exclusively  for  temporary  pur- 
poses, see  Miller  v.  Railway  Co.,  13 
Dec.  418. 

Municipality  cannot  construct. 
—  It  was  held  that  a  municipality 
has  no  authority  to  construct  or 
operate  a  street  railway.  Cleveland 
v.  Railway  Co.,  3  C.  C.  (N.  S.) 
563,  23  C  C.  373. 

Municipal  power  to  grant 
right,  to  construct  street  railway, 
independent  of  statute,  considered, 
see  Hattersly  v.  Waterville,  4  C.  C. 
(N.  S.)  242,  26  C.  C.  226.  But 
where  there  are  statutory  require- 
ments, grant  must  be  made  in  ac- 
cordance  with   them   and   they   are 


mandatory.  Horstman  v.  Street 
Railway  Co.,  14  Dec.  545,  551;  Lou- 
isville Trust  Co.  v.  Cincinnati,  11 
0.  F.  D.  112;  Raynolds  v.  Cleveland, 
2  C.  C.    (N.  S.)    139,  24  C.  C.  215. 

Character  of  grant. —  The  right 
to  construct  a  railway  in  the  street 
is  a  privilege  or  franchise  granted 
by  the  state,  and  the  fact  that  the 
priyilege  is  not  to  be  exercised  until 
municipal  authorities  consent  does 
not  change  the  source  of  power,  but 
is  merely  a  condition  to  the  exer- 
cise of  the  privilege.  State  ex  rel. 
v.  Columbus  Railway  Co.,  24  C.  C. 
609,  627;  1  C.  C.  (N.  S.)  145.  The 
grant  does  not  exclude  another  grant 
for  use  of  unoccupied  portion  of 
street.  H.  G.  &  C.  Traction  Co.  v. 
Transit  Co.,  '69  0.  S.  402. 

The  street  railway  company, 
granted  the  right  to  use  a  particu- 
lar portion  of  a  street,  does  not 
acquire  the  fee  to  the  soil  of  that 
portion,  but  it  does  acquire  a  fran- 
chise, and  easement,  which  is  its 
private  property;  it  is  more  than 
a  license,  it  is  a  vested  property 
right,  carrying  with  it  the  right  to 
exclusive  user,  so  far  as  consistent 
with  the  welfare  and  convenience 
of  the  general  public.     lb. 

Power  of  eminent  domain,  is 
not  impliedly  given  by  this  section 
to  street  railway  companies,  nor  do 
such  companies  have  this  power  un- 
der general  steam  railroad  laws. 
Columbus,  etc.,  Traction  Co.  v.  Mar- 
riott, 47  B.  357.  For  statute  giv- 
ing limited  power  of  eminent  do- 
main to  interurban  railroad  compa- 
nies within  municipalities,  see  R.  S. 
§  25056-1,  p.  702. 

Railway  through  park. —  As  to 
the  right  of  a  municipality  to  grant 
a  railway  route  through  a  park. 
See  Mathers  v.  Cincinnati,  3  B.  551 ; 
Cleveland,  etc.,  Ry.  v.  Barriss,  33 
B.  314  (Supreme  Court  unre- 
ported). 


Code  §  29]  street  railways.  144: 

Sec.  29.  [Who  may  grant  authority  to  construct  street  rail- 
way; proviso.]1  The  right  so  to  construct  or  extend  2  such  rail- 
way as  provided  in  section  3437  Revised  Statutes  of  Ohio, 
within  or  beyond  the  limits  of  a  municipal  corporation  can  be 
granted  only  by  the  council  thereof,3  by  ordinance,  and  the 
right  to  construct  such  railway  within  or  beyond  the  limits  of 
an  unincorporated  village  can  be  granted  only  by  the  county 
commissioners,  by  order  entered  on  their  journal ;  and  after  said 
grant  or  renewal  of  any  grant  shall  have  been  made,  whether 
by  general  or  special  ordinance,  or  by  the  order  of  the  county 
commissioners,  neither  the  municipal  corporation  nor  the  county 
commissioners  shall  release  the  grantee  from  any  obligations 
or  liabilities  imposed  by  the  terms  of  said  grant  or  renewal  of 
a  grant  during  the  term  for  which  said  grant  or  renewal  shall 
have  been  made.4  Provided,  that  no  authority  shall  be  given 
by  such  municipal  or  county  authorities,  to  occupy  the  track, 
whether  single  or  double,  or  other  structure,  of  any  existing 
street  railways  for  more  than  one-eighth  of  the  entire  distance 
between  the  termini  of  the  route,  as  actually  constructed,  op- 
erated and  run  over,  of  the  company  or  individual  to  whom 
such  grant  is  made ;  5  except,  however,  in  granting  permission 
to  extend  existing  routes  in  cities,  such  cities,  and  the  com- 
panies owning  such  route,  shall  have  the  same  rights  and  pow- 
ers they  have  under  the  laws  and  contracts  now  existing;  and 
that  j->o  extension  of  any  street  railroad  located  wholly  without 
any  swh  city,  or  of  any  street  railroad  wherever  located,  which 
has  beer»  or  shall  be  built  in  pursuance  of  a  right  obtained  from 
any  source  or  authority  other  than  a  municipal  corporation, 
shall  be  made  within  the  limits  of  such  city,  except  as  a  new 
route,  aud  subject  to  the  provisions  of  section  2501  of  the  Re- 
vised Sta^Akw  of  Ohio  and  section  30  of  this  act.6 

(1)    Old    section. — This    section  (2)    Extension. — A  marked  dis- 

is  practically  a  re-writing  of  §  3438  tinction  is  drawn  between  an  origi- 

R.    8.    (repealed)    omitting  all   the  nal    grant    for    construction    and    a 

references  to  grades  and  classes  of  grant  for  an  extension  of  a  street 

cities    and    making    the    provisions  railway.     In  the  case  of  an  original 

general.  grant  for  construction,  the  grant  can 


145 


THE  OHIO  MUNICIPAL   CODE. 


[Code  §  29 


be  made  only  upon  publication  of 
notice  of  pendency  of  the  application 
and  to  the  company  offering  to  carry 
passengers  at  the  lowest  rate  of 
fare;  the  grant  of  a  right  to  extend 
tracks  can  only  be  granted  to  a  com- 
pany owning  or  having  the  right  to 
construct  a  railroad,  and  there  is 
no  bidding  for  the  grant  or  notice 
of  the  application.  Day  v.  Railway 
Company,  27  C.  C.  60;  5  C.  C.  (N. 
b.)  393;  C.  C.  C.  &  St.  L.  Ry.  Co. 
v.  U.  B.  &  N.  Railway  Company,  26 
C.  C.  180.  See  also  Belle  v.  Glen- 
ville,  27  C.  C.  181;  5  C.  C.  (N.  S.) 
461   (aff'd  73  O.  8.  392.) 

Extension  may  be  granted  beyond 
the  termini  named  in  the  articles 
of  incorporation  of  the  company. 
Sims  v.  St.  Railroad,  37  O.  S.  556. 

Extension  need  not  run  in  the 
general  direction  of  the  original 
route  or  begin  at  one  of  the  original 
termini.  Cincinnati  v.  Cincinnati 
St.  Railway,  31  B.  308;  Belle  v. 
Glenville,  27  C.  C.  181;  5  C.  C.  (N. 
S.)  461   (aff'd  73  O.  S.  392). 

An  extension  may  be  along  other 
streets  and  not  in  a  straight  line. 
Sommers  v.  Cincinnati,  8  Rec.  612. 

An  extension  granted  for  a  period 
extending  beyond  remaining  period 
of  grant  of  original  route  does  not 
extend  grant  of  such  original  route, 
and  the  extension  is  valid  only  dur- 
ing remaining  period  of  original 
grant.  Cleveland  Elec.  Ry.  Co.  v. 
Cleveland,  14  O.  F.  D.  513;  3  O.  L. 
R.  75. 

An  extension  for  an  electric  rail- 
way is  not  invalid  because  the  orig- 
inal grant  was  for  a  railway  using 
horses  as  motive  power.  Belle  v. 
Glenville,  27  C.  C.  181;  5  C.  C.  (N. 
S.)  461  (aff'd  73  O.  S.  392). 

An  ordinance  granting  the  exten- 
sion is  not  an  act  conferring  cor- 
porate power.  The  corporate  power 
is  conferred  by  the  statute  under 
which  the  company  is  incorporated 
and  the  ordinance  is  merely  a  per- 
mit. Sims  v.  St.  Railroad  Co.,  37 
O.  S.  556. 

Consents. — In  the  case  of  consents 
obtained  for  the  original  construc- 
tion of  a  street  railroad,  they  enure 
to  the  benefit  of  the  lowest  bidder, 
no  matter  from  whom  obtained;  but 
consents  obtained  for  the  extension 
of  street  railways  enure  to  the  bene- 
fit onlv  of  the  railway  specified.  Day 
v.  Railway  Co.,  27  C.  C.  60 ;  5  C.  C. 
(N.  S.)  393. 
Beyond  city  limits. — An  ordinance 


granting  extension  along  highways 
outside  the  city  limits  merely  con- 
fers the  power  and  does  not  dis- 
pense with  the  necessary  agreement 
with  the  county  commissioners,  or 
condemnation.  Railroad  Co.  v.  Com- 
missioners, 56  O.  S.  1 ;  Richland 
County  v.  Citizens'  Electric  Railway 
Co.,  9  C.  C.  183. 

(3)  Council.  —  The  grant  by 
council  must  be  made  directly  to 
the  grantee,  and  power  to  make  the 
grant  cannot  be  delegated.  State 
ex  rel.  v.  Bell,  34  O.  S.  194. 

Council  was  held  under  the  for- 
mer laws  to  include  trustees  of 
hamlets.  Annexation  to  Newburgh, 
15  C.  C.  78,  80. 

(4)  Provision  unequivocal. — A 
provision  such  as  this  is  unequivo- 
cal and  forbids  any  release  of  what 
is  due  the  city  by  its  officers  and  in 
the  face  of  such  a  statute  neither 
the  principles  of  account  stated  nor 
of  accord  and  satisfaction  based 
upon  receipt  of  a  less  amount  than 
is  due  have  any  application.  Cin- 
cinnati Street  Railway  Co.  v.  Cin- 
cinnati, 8N.P.  80. 

(5)  Extension  over  other 
tracks. — Before  the  limitation  as 
to  length  of  extension  over  other 
tracks,  it  was  held  municipality  had 
general  power  to  grant  right  to  one 
company  to  run  over  tracks  of  an- 
other company,  compensation  being 
paid  the  company  already  occupying 
the  street.  Sims  v.  St.  Ry.  Co.,  37 
O.  S.  556;  Broadway  St.  Ry.  v. 
Brooklyn  St.  Ry.,  10  B.  72. 

How  determine  length  of  track. 
— The  trackage  of  a  railway  over 
its  entire  route  and  not  merely  that 
part  within  the  city  may  be  con- 
sidered in  determining  the  length 
of  track  of  railway  already  in  that 
city  that  may  be  used.  State  v. 
Electric  Street  Railway,  19  C.  C.  79. 

Right  to  "straddle"  tracks  of 
another  company  may  be  given,  as 
well  as  right  to  occupy  track,  but 
compensation  must  be  paid  first  com- 
pany. H.  G.  &  C.  Traction  Co.  v. 
Transit  Co.,  69  O.   S.  402. 

Appropriation  of  track. — After 
council  has  granted  a  company  the 
right  to  use  part  of  the  track  of 
another  company,  if  the  two  com- 
panies do  not  agree,  appropriation 
proceedings  may  be  taken  to  fix  the 
compensation.  Street  Ry.  v.  Street 
Ry.,  50  O.  S.  603. 

For  matters  relating  to  appropria- 
tion   of    part    of    track    of    another 


Code  §  29] 


STREET   RAILWAYS. 


146 


lines.  Where  there  is  a  conflict  as 
to  municipal  lines  or  extensions,  the 
special  provisions  of  §§  2501  to  2505 
R.  S.  must  govern.  C.  C.  C.  &  St. 
L.  Ry.  Co.  v.   U.  B.  &  N.  Ry.  Co., 

26  C.  C.  180;  5  C.  C.  (N.  S.)  583 
(aff'd  73  O.  B.  364). 

Annexation  of  territory. — As 
to  whether  the  extension  must  be  as 
a  new  route  when  the  original  grant 
was  made  by  county  commissioners, 
but  the  territory  through  which  it- 
ran  was  subsequently  annexed  to  the 
municipalitv,  see  Belle  v.  Glenville, 

27  C.  C.  181;  5  C.  C.  (N.  S.)  461 
(aff'd  73  O.  S.  392). 


company,  see  notes  to  §  3440  R.  S. 
in  Part  II. 

(6)  Construed  with  other  laws. 

It  was  held  that  §  3438  R.  S. 
must  be  construed  with  other  laws 
relating  to  the  same  subject.  R. 
R.  Co.  v.  Commissioners,  56  O.  S. 
1,  7.  See  also  Hattersly  v.  Water- 
ville,  26  C.  C.  226,  229;  4  C.  C.  (N. 

S.)  242  (aff'd  74  0.  S.  .) 

It  was  held  that  §§3437,  3438, 
3439  et  seg.  R.  S.  refer  to  street 
railways  and  extensions  wherever  lo- 
cated; §§2501  to  2505  R.  S.  relate 
wholly  to  lines"  and  extensions  with- 
in municipalities,  §  2505  R.  S.  re- 
lating solely  to  extensions  of  such 

Sec.  2501  R.  S.  [Terms  of  condition  of  construction  and 
operation  to  be  fixed  by  council;  renewal  of  grant]  No  corpo- 
ration, individual  or  individuals  shall  perform  any  work  in 
the  construction  of  a  street  railroad,  until  application  for  leave1 
is  made  to  the  council  in  writing,  and  the  council  by  ordinance2 
shall  have  granted  permission,  and  prescribed  the  terms  and 
conditions  upon,  and  the  manner  in  which  the  road  shall  be 
constructed  and  operated,  and  the  streets  and  alleys  which  shall 
be  used  and  occupied  therefor,  but  the  council  may  renew3  any 
such  grant  at  its  expiration  upon  such  conditions  as  may  be  con- 
sidered conducive  to  the  public  interest.  [92  v.  206;  84  v.  40; 
Rev.  Stat.  1880;  66  v.  217,  §  411;  76  v.  156,  §  4;  (S.  &  S.  137; 
S.  &  C.  1560).] 


(1)  Application    for    leave. — 

That  the  application  for  grant  is 
filed  before  the  company  is  fully  in- 
corporated, does  not  make  it  invalid 
or  give  ground  for  enjoining  grant. 
Sloane  v.  People's  Elec.  Ry.,  7  C.  C. 
84. 

The  application  may  be  in  the  al- 
ternative, leaving  the  city  to  choose 
between  two  routes.  Simmons  v. 
Toledo,  5  C.  C.  124. 

Presentation  of  ordinance  to  coun- 
cil by  company  was  held  to  be  a  suf- 
ficient application.  Sanfleet  v.  To- 
ledo, 10  C.  C.  460.  (Affirmed,  54  O. 
S.  620.) 

(2)  Ordinance  to  construct. — 
Preliminary  ordinance  designating 
the  route  and  directing  advertise- 
ment for  bids  is  not  an  ordinance 
creating  a  right  or  granting  a  fran- 
chise or  involving  an  expenditure  of 
money.  State  ex  rel.  v.  Henderson, 
38  O.  S.  644. 

An  ordinance  establishing  the 
route  was  held  not  to  be  necessary, 


in  Sloane  v.  People's  Electric  Ry., 
7  C.  C.  84. 

Construction    of    ordinance. — 

The  grant  by  a  city  to  a  street  rail- 
way company  to  lay  its  tracks  in 
the  street  is  to  be  strictly  construed 
and  a  doubt  is  fatal.  Hamilton, 
etc.,  Electric  Transit  Co.  v.  Hamil- 
ton, 1  N.  P.  366. 

The  right  to  have  necessary  side- 
tracks, etc.,  and  other  appliances 
was  held  not  to  include  the  right  to 
have  a  transfer  house  in  the  middle 
of  the  street,     lb. 

Permission  to  build  a  temporary 
transfer  house  will  not  confer  the 
right  to  build  a  permanent  struct- 
ure,    lb. 

Construction  of  ordinance  requir- 
ing railway  company  to  pay  for 
pavement  already  laid  on  street, 
such  proportion  of  cost  as  the  width 
occupied  by  track  and  one  foot  on 
each  side,  bears  to  entire  width  of 
roadway.  U.  M.  &  C.  Ry.  Co.  v. 
Columbus,  16  Dec.  102;  3  N.  P.  (N. 
S.)   438. 


147 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  29 


Construction  of  ordinance  renew- 
ing previous  grant,  see  Akron  v. 
Traction  &  Light  Co.,  27  C.  C.  536; 
6  C.  C.   (N.  S.)   445. 

When  the  provisions  of  the  ordi- 
nance are  plain  and  unambiguous 
there  is  no  room  for  a  practical 
construction  by  conduct  of  the  par- 
ties. Cincinnati  v.  Street  Railway 
Co.,  6  N.  P.  140. 

An  ordinance  providing  that  a 
street  railway  shall  pay  annually 
$4  per  lineal  foot  on  each  car  run 
does  not  mean  on  the  average  num- 
bers of  cars  run,  but  is  to  be  strictly 
construed.     lb. 

Statement  rendered  by  the  com- 
pany as  to  cars  run  and  payment 
pursuant  thereto,  do  not  constitute 
account  stated  or  settled  or  accord 
and  satisfaction,  but  only  a  pay- 
ment on  account.     lb. 

An  ordinance  requiring  a  per- 
centage of  all  earnings  to  be  paid  to 
the  city  and  fixing  a  sum  per  lineal 
feet  on  each  car,  construed.  Cin- 
cinnati v.  Mt.  Auburn  Cable  Rail 
way,  28  B.  276.  See  also  Cincin- 
nati v.  Cincinnati  Incline  Plane 
Railway  Co.,  30  B.  321. 

The  fact  that  a  railway  ruote 
branches  into  two  directions  does 
not  make  it  two  routes.  Aydelott 
v.  Cincinnati,  11  C.  C.  11. 

A  street  railway  grant  providing 
that  the  railway  should  be  built 
within  six  months  from  the  time  the 
city  had  completed  certain  grading, 
interpreted.  Toledo  v.  Toledo  Ry.  & 
Light  Co.,  2  C.  C.  (N.  S.)  97. 

Character    of    ordinance. — An 

ordinance  duly  accepted  by  the  city 
constitutes  a  contract  between  the 
railway  and  the  city.  Cincinnati 
v.  Street  Railway  Co.,  6  N.  P.  140; 
State  v.  Ry.,  15  C.  C.  200. 

The  grant  cannot  be  exclusive  to 
one  company.  Toledo,  etc.,  Railway 
Co.  v.  Toledo  Electric  Street  Rail- 
way Co.,  6  C.  C.  362  (affirmed,  50 
O.  S.  603). 

It  cannot  be  upon  streets  to  be 
thereafter  designated.  Cincinnati 
Street  Railway  Co.  v.  Smith,  29  O. 
S.  291. 

It  cannot  grant  a  route  in  the  al- 
ternative, leaving  the  company  to 
choose.  Sommers  v.  Cincinnati,  8 
Rec.    612. 


It  is  not  void  because  the  per- 
son to  whom  it  is  granted  is  des- 
ignated as  trustee.  Simmons  v. 
Toledo,  5  C.  C.  124. 

Grant  is  not  invalid  because  it 
covers  only  part  of  the  route  de- 
scribed in  the  application.  Sim- 
mons v.  Toledo,  5  C.  C.  124. 

Section  gives  no  power  to  pass 
an  ordinance  forbidding  cars  with- 
out conductors.  Thornhill  v.  Cin- 
cinnati, 4  C.  C.  354. 

If  grant  to  street  railway  fixes 
the  fare  and  provides  that  it  shall 
be  the  rate  during  the  existence  of 
the  ordinance,  unless  the  express 
power  to  change  the  fare  is  reserved, 
it  cannot  be  changed  by  the  munic- 
ipal authorities.  Cleveland  City 
Ry.  v.  Cleveland,  12  O.  F.  D.  635. 

Grants  to  street  railway  com- 
panies are  protected  by  the  provi- 
sions of  the  U.  S.  Constitution 
against  impairment  of  contracts.     lb. 

Where  a  street  railway  company 
has  a  franchise  in  which  no  pro- 
vision is  made  for  either  single  or 
double  trolley  system  and  the  com- 
pany adopts  single  trolleys,  it  can- 
not subsequently  be  required  to 
change  to  a  double  trolley  system  to 
avoid  injury  to  public  or  private 
property  by  electrolysis.  Dayton  v. 
City  Ry.  Co.,   12  Dec.  258. 

Effect  of  changing  the  proposed 
route  after  advertisement  for  bids. 
Raynolds  v.  Cleveland,  24  C.  C.  215; 
2  C.  C.   (N.  S.)   139. 

Conditions.  — Illegal  condition, 
not  separable,  renders  the  whole 
grant  invalid.  Cincinnati  Street 
Railway  v.  Smith,  29  O.  S.  291. 

Construction  of  a  grant  contain- 
ing the  condition  that  the  company 
should  keep  the  streets  between  its 
tracks  in  repair.  See  Columbus  v. 
St.  Railroad,  45  O.  S.  98. 

Ordinance  cannot  impose  condi- 
tions   that   the    company    shall    not 


Code  §  29] 


STREET    RAILWAYS 


148 


exercise  one  of  its  corporate  pow- 
ers. Thus  a  regulation  that  it  shall 
not  carry  freight  is  void.  State  v. 
Dayton  Traction  Co.,  18  C.  C.  490. 

A  provision  requiring  arbitration 
between  railway  company  and  its 
employees  held  invalid.  Raynolds  v. 
Cleveland,  13  Dec.  125;  24  C.  C. 
215;   2  C  C.    (N.  S.)    139. 

Requirement  that  railway  com- 
pany should  pave  between  rails  does 
not  make  the  company  liable  to  the 
city  for  any  part  of  damages 
awarded  to  property  holders  for  a 
paving  improvement.  Street  Rail- 
way v.  Dayton,  1  Dayton,  165. 

Upon  failure  to  comply  with  the 
conditions  in  a  grant  council  may 
order  tracks  to  be  torn  up  without 
legal  proceedings  where  an  or- 
dinance contained  the  words  "  or 
if  in  their  opinion  expedient  have 
the  tracks  removed  from  the  street." 
Stewart  v.  Ashtabula,  36  B.  46. 
1  Where  ordinance  provides  for 
notice  before  forfeiture,  notice 
must  be  given  before  council  can 
declare  rights  forfeited.  Akron 
v.  Traction  &  Light  Co.,  27  C.  C. 
536;    6  C.  C.   (N.  S.)   445. 

Ordinance  may  provide  for 
transfers.  Reynolds  v.  Cleveland, 
8  C.  C.    (N.  S.)   278. 

Rights  of  grantee. — Where  a 
city  council  has,  by  ordinance,  le- 
gally granted  to  one  street  railroad 
the  right  to  construct  its  railway 
over  a  particular  part  of  a  desig- 
nated street,  and  such  company  has 
accepted  the  grant  and  taken  pos- 
session of  the  right  of  way,  such 
company  acquires  a  vested  property 
right  in  the  nature  of  a  franchise  or 
easement  to  the  particular  portion 
of  the  street  designated  in  the  grant, 
and  such  grant  carries  with  it  all 
right  of  acquisition,  occupancy  and 
use  of  that  portion  of  the  street  for 
the  purposes  for  which  it  was  grant- 
ed so  far  as  consistent  with  the  wel- 
fare and  convenience  of  the  general 


public.  H.  G.  &  C.  Traction  Co.  v. 
Transit  Co.,  69  O.  S.  402. 

Another  company  claiming  under 
a  subsequent  grant  of  the  council  to 
use  the  same  right  of  way  by  strad- 
dling the  tracks  of  the  former  com- 
pany, cannot  enter  and. take  posses- 
sion of  the  right  of  way  granted 
to  the  first  company  without  appro- 
priating the  right  so  to  do,  and  pay- 
ing  compensation   therefor.     lb. 

A  company  having  grants  of  sev- 
eral routes  cannot  combine  any  of 
the  streets  in  such  routes  into  a 
new  route,  without  a  new  grant 
complying  with  statutes.  Horstman 
v.  St.  Ry.  Co.,  14  Dec.  545.  Where 
one  company  has  been  granted  the 
right  to  put  down  a  double  track 
and  another  the  right  to  put  down 
a  single  track  on  same  street,  a 
court  cannot  compel  them  to  com- 
bine so  as  to  have  two  instead  of 
three  tracks.  Hamilton  St.  Ry.,  etc., 
Co.  v.  Transit  Co.,  5  C.  C.  319. 

Remedies  in  case  of  illegal 
grants  or  violations  of  ordinance. 
—  Injunction  pendente  lite  will  not 
be  allowed  to  prevent  railway  com- 
pany from  acting  under  an  ordinance 
claimed  to  be  illegal  because  an 
abuse  of  corporate  power  of  the  city, 
where  it  appears  that  the  ordinance 
is  beneficial  to  the  city.  Ross  v. 
Columbus,  8  N.  P.  420. 

An  abutting  owner  suing  in  his 
right  as  such  and  not  as  a  taxpayer 
cannot  attack  the  grant  except  for 
want  of  consents.  Glidden  v.  Cin- 
cinnati, 30  B.  213;  Barney  v.  Rail- 
way Co.,  30  B.  286. 

Abutting  owner  cannot  enjoin  on 
ground  that  street  railway  is  a  nui- 
sance. Dietz  v.  Traction  Co.,  4 
N.  P.  399;  Sanfleet  v.  Toledo,  10 
C.  C.  460. 

Courts  will  not  interfere  with  the 
discretionary    power    of    council    t« 


148a 


THE  OHIO  MUNICIPAL  CODE. 


[Code  §  29 


grant  the  use  of  streets  to  any  street 
railway  company,  if  beneficial  to  the 
public,  in  the  absence  of  fraud. 
Sims  v.  Street  R.  R.  Co.,  37  O.  S. 
556. 

It  was  held  a  competing  railway 
cannot  object  to  non-compliance  with 
the  provisions  of  §§  2501,  2502  R.  S. 
Toledo,  etc.,  Ry.  v.  Toledo  Elec.  St. 
Ry.,  6  C.  C.  362. 

As  to  injunction  against  grant, 
see  further,  Buning  v.  Cincinnati 
Street  Railway,  1  C.  C.  323;  Cincin- 
nati St.  Ry.  v.  Smith,  2y  O.  S.  291; 
Gallagher  v.  Johnston,  31  B.  24. 

As  to  enjoining  contract  between 
two  companies  for  carrying  cars  over 
tracks,  see  Rogers  v.  Railway  Co., 

12  Dec.  136. 

Injunction  will  lie  at  suit  of  a 
taxpayer  to  prevent  a  railway  cor- 
poration from  using  for  purposes 
not  authorized  by  its  grant,  rights 
and  privileges  in  the  streets.  Rog- 
ers v.  Ry.,  12  Dec.  136. 

So,  operation  of  street  railway 
without  authority  of  law,  or  under 
unconstitutional  law,  may  be  so  en- 
joined.   Horstman  v.  Street  Ry.  Co., 

13  Dec.  670;    1  *.  P.    (N.   S.)    25; 

14  Dec.  545 ;  and  such  operation  is  a 
continuing  nuisance,  and  the  statute 
of  limitations  does  not  apply.    lb. 

A  railway  company  using  a  sin- 
gle trolley  system  under  municipal 
grant  not  specifying  the  system, 
will  not  be  compelled  by  a  court  of 
equity  to  change  to  a  double  trolley 
system,  because  of  damage  to  water 
pipes,  where  there  is  a  conflict  in 
the  testimony  as  to  whether  or  not 
a  single  trolley  system  is  a  proper 
one  for  street  railways.  Dayton  v. 
Railway  Co.,  26  C.  0.  736;  6  C.  C. 
(N.  B.)   41. 

Liability  of  railway  company  for 
injury  to  water  pipes  from  single 
trolley  system,  see  lb. 

Street  railway  grant  cannot  be  en- 
joined unless  defects  and  irregulari- 
ties in  proceedings  are  plainly  juris- 
dictional, or  of  such  a  nature  that 
the  equity  and  justice  of  the  case 
demand  the  interference  of  the  court. 
Sloane  v.  Ry.  Co.,  7  C.  C.  84. 

Specific  performance  is  not  the 
proper  remedy  to  compel  the  com- 
pany to  carry  out  the  terms  of  its 
franchise.  Matthews  v.  Traction 
Company,  25  C.  C.  652;  5  C.  C.  (N. 
S.)   179  (aff'd  70  O.  S.  436). 


As  to  whether  quo  warranto  will 
lie  for  violation  of  franchise  from 
municipality,  see  State  ex  rel.  v. 
Toledo  Ry.  &  Light  Co.,  23  C.  C. 
603;  3  C.  C.  (N.  S.)  285;  reversed, 
73  O.  S.  356. 

As  to  when  forfeiture  of  franchise 
will  be  granted,  see  Toledo  v.  Toledo 
Ry.  &  Light  Co.,  2  C.  C.  (N.  S.) 
97;  25  C.  C.  441;  State  ex  rel.  v. 
C.  M.  &  L.  Traction  Co.,  5  C.  C. 
(N.  S.)  167. 

As  to  when  court  will  grant  man- 
datory injunction  to  compel  specific 
performance  of  provision  for  repair 
in  franchises,  see  Milford  v.  Trac- 
tion Company,  26  C.  C.  271;  4  C.  C. 
(N.  S.)    191   (aff'd  71  O.  S.  529). 

(3)  Renewal  of  grant. — What 
is.  Leave  to  change  the  motive 
power  to  electricity  is  not  an  im- 
plied renewal.  Cincinnati  v.  Street 
Ry.  Co.,  30  B.  321  (affirmed,  52  O. 
S.   609J. 

Consolidation  into  one  system  and 
ordinance  imposing  transfer  obliga- 
tion do  not  operate  to  prolong  life 
of  any  prior  grant.  Cleveland  Elec. 
Ry.  Co.  v.  Cleveland,  14  O.  F.  D. 
513;   3  O.  L.  R.   75. 

Extension  of  time  of  grant  by  im- 
plication is  not  favored.     lb. 

Before  expiration  of  grant. — Re- 
newal may  be  made  before  the  orig- 
inal grant  has  expired.  State  ex 
rel.  v.  East  Cleveland  Ry.,  6  C.  C. 
318;  Cincinnati  v.  St.  Ry.,  31  B. 
308;  Belle  v.  Glenville,  27  C.  C.  181; 

5  C.  C.  (N.  S.)  461  (aff'd  73  O.  S. 
392). 

Longer  than  legal. — Renewal  for 
longer  period  than  allowed  by  law 
will  be  valid  for  the  period  allow- 
able. Sommers  v.  Cincinnati,  8  Re 
612. 

Renewal  of  grant  is  a  waiver  of 
rights  of  municipality  because  of 
failure  of  company  to  lay  tracks  as 
provided  in  original  grant.  Akron 
v.  Traction  &  Light  Co.,  27  C.  C. 
536;  6  C.  C.    (N.  S.)    445. 

Consents  and  competitive  bidding. 
— Consents  of  abutting  owners  not 
necessary  in  case  of  renewal  of 
grant.    State  v.  East  Cleveland  Ry., 

6  C.  C.  318;  Pelton  v.  East  Cleve- 
land Ry.,  22  B.  67.  Nor  is  competi- 
tive bidding  necessary.  State  v. 
East  Cleveland  Ry.,  6  C.  C.  318; 
Haskins  v.  Cin.  Consol.  Ry.,  4  B. 
1126. 


Code    §    30]  STREET    RAILWAYS.  149 

Conditions. —  Renewal      may      be  fere,  even  though  part  of  first  corn- 
made  on   condition  that  city  might  pany's     business     would     be     taken 
allow  another  company  to  use  the  away.       Broadway,     etc.,     Ry.     v. 
tracks  on- terms  satisfactory  to  city.  Brooklyn,  etc.,  Ry.,  10  B.  72. 
In   such   case   court  will  not  inter- 

FORM  OF  APPLICATION  FOR  LEAVE  TO  CONSTRUCT  A  STREET 

RAILWAY. 

APPLICATION. 

19 

To  the  Honorable  the  council  of  the  city  [or  village]  of , 

State  of  Ohio : 
The  undersigned   hereby  request  permission  to  construct,  maintain  and 

operate  a  street  railroad  in  the  city  [or  village]  of ,  State 

of  Ohio,  over,  along  and  upon  the  following  streets:  (here  describe  the 
route)  said  railroad  to  consist  of  a  single  [or  double]  track  with  the  neces- 
sary switches,  turnouts,  curves,  loops,  Y's,  poles,  wires  and  all  other  neces- 
sary fixtures  and  apparatus  and  to  be  operated  by  electricity  or  other 
motive  power  except  steam. 

And  the  undersigned  respectfully  request  your  honorable  board  to  take 
the  necessary  steps  required  by  law  to  establish  said  route  and  grant  said 
permission. 

Respectfully, 


Sec.  30.  [Proceedings  to  establish  a  street  railway  route; 
grant  not  valid  for  more  than  twenty-five  years.]1  Nothing  men- 
tioned in  section  2501  of  the  Revised  Statutes  of  Ohio  shall  be 
done;  no  ordinance  or  resolution  to  establish  or  define  a  street 
railroad  route  shall  be  passed,  and  no  action  inviting  proposals 
to  construct  and  operate  such  railroad  shall  be  taken  by  the 
council;  and  no  ordinance  for  the  purpose  specified  in  section 
2501  of  the  Revised  Statutes  of  Ohio  shall  be  passed  until  pub- 
lic notice  of  the  application  therefor  has  been  given  by  the  clerk 
of  the  corporation  once  a  week,  for  the  period  of  at  least  three 
consecutive  weeks  in  one  or  more  of  the  daily  papers,  if  there 
be  such,  and  if  not,  then  in  one  or  more  weekly  papers  publish- 
ed in  the  corporation ;  2  and  no  such  grant  as  mentioned  in  sec- 
tion 2501  of  the  Revised  Statutes  of  Ohio  shall  be  made,  except 
to  the  corporation,  individual  or  individuals,  that  will  agree  to 
carry  passengers  upon  such  proposed  railroad  at  the  lowest  rate3 


150 


THE    OHIO    MUNICIPAL     CODE.  [Code    §    30 


of  fare,3  and  shall  have  previously  obtained  the  written  consent 
of  a  majority  of  the  property  holders  upon  each  street  or  part 
thereof,  on  the  line  of  the  proposed  street  railroad,  represented 
by  the  feet  front  of  the  property  abutting  on  the  several  streets 
along  which  such  road  is  proposed  to  be  constructed  ;4  provided, 
that  no  grant  nor  renewal  of  any  grant  for  the  construction  or 
operation  of  any  street  railroad,  shall  be  valid  for  a  greater 
period  than  twenty-five  years  from  tjie  date  of  such  grant  or 
renewal  f  and  after  such  grant  or  renewal  of  a  grant  is  made, 
whether  by  special  or  general  ordinance,  the  municipal  corpora- 
tion shall  not,  during  the  term  of  such  grant  or  renewal,  release 
the  grantee  from  any  obligation  or  liability  imposed  by  the 
terms  of  such  grant  or  renewal  of  a  grant.6 


(1)  Old  section. —  Old  section 
2502  R.  S.  is  practically  rewrit- 
ten here,  except  that  reference  to 
recommendation  of  a  board  of  pub- 
lic works  or  board  of  improvements 
is  omitted,  and  a  proviso  relating  to 
certain  grades  and  classes  of  cities 
is  also  omitted. 

(2)  When  publication  neces= 
sary.—  The  wording  of  §  2502  R.  S. 
was  somewhat  different  from  the 
present  code  section.  The  former 
read:  "Nothing  mentioned  in  the 
next  preceding  section  [2501]  shall 
be  done;  no  ordinance  or  resolution 
to  establish  or  define  a  street  rail- 
road route  shall  be  passed,  and  no 
action  inviting  proposals  to  con- 
struct and  operate  such  railroad 
shall  be  taken  by  the  council,  ex- 
cept    upon     recommendation,     etc., 

and  no  ordinance  for 
the  purpose  specified  in  said  preced- 
ing section  shall  be  passed  until  pub- 
lic notice  of  the  application  there- 
for has  been  given,  etc."  . 
Under  this  language  it  was  held  that 
the  operation  of  the  provisions  of  § 
2502  R.  S.  was  restricted  to  the  ordi- 
nance for  the  original  construction 


of  a  street  railway,  and  a  publica- 
tion of  notice  was  therefore  not  nec- 
essary, in  the  case  of  a  renewal  of  a 
grant.  State  v.  East  Cleveland  R.  R. 
Co.,  6  C.  C.  318,  322;  and  it  was  also 
held  that  no  notice  was  necessary 
before  the  terms  and  conditions  of 
a  grant  were  made,  only  the  final 
grant  requiring  the  notice.  Ayde- 
lott  v.  Cincinnati,  11  C.  C.  11. 

In  the  new  section,  by  the  omis- 
sion of  the  reference  to  the  board  of 
improvements,  all  the  clauses  of  the 
section  up  to  the  words  "until  pub- 
lic notice,  etc.,"  are  made  to  apply 
to  the  provision  relating  to  notice. 

Extensions,  whether  notice  re- 
quired, see  C.  C.  C.  &  St.  L.  Ry.  Co. 
v.  U.  B.  &  N.  Ry.  Co.,  26  C.  C.  180. 

Sufficiency     of     publication. — 

One  insertion  each  week  on  same 
day  of  week  for  three  weeks  is  suf- 
ficient. Smith  v.  Columbus,  etc., 
Ry.,  8N.P.1;  Simmons  v.  Toledo,  5 
C.  C.  124  (aff ' d  30  B.  392,  no  report. ) 
See  also  Early  v.  Doe,  16  How  (U. 
S.)  610  and  cases  cited. 

Under  former  laws,  publication 
for  required  time,  in  one  newspaper 


Code  §30] 


STREET    RAILWAYS. 


151 


was  sufficient,  even  though  a  general 
city  ordinance  required  such  or- 
dinance to  be  published  in  two 
newspapers.  Simmons  v.  Toledo, 
supra. 

But,  as  to  present  requirement, 
see  §  124  of  the  Code. 

Estoppel  of  municipality  to  deny 
publication,  see  Raynolds  v.  Cleve- 
land, 8  C.  C.   (N.  B.)  278. 

Where  franchise  was  granted  after 
publication  of  notice  legally  insuf- 
ficient, council  cannot  legalize  the 
grant  by  a  curative  ordinance  de- 
claring the  publication  sufficient. 
Ravnolds  v.  Cleveland,  8  C.  C.  (N. 
S.)    278. 

(3)  Must  be  to  lowest  bidder. 
— The  franchise  must  be  given  to 
one  who  bids  the  lowest  fares  and 
the  grant  to  one  who  is  not  such  is 
void.  Knorr  v.  Miller,  5  C.  C.  609 
(affirmed,  27  B.  64)  ;  Compton  v. 
Johnson,  9  C.  C.  532. 

Who  is  lowest  bidder. — A  bid- 
der who  agreed  to  charge  "the  low- 
est price  of  commutation  tickets  in 
packages"  is  not  the  lowest  bidder. 
Cincinnati  St.  By.  v.  Smith,  29  O. 
S.  291. 

Council  cannot  disregard  the  low- 
est bid  on  the  ground  that  the  mo- 
tive of  the  bidder  was  obstructive 
and  not  bona  fide.  Knorr  v.  Miller, 
25  B.  128;  5  C.  C.  609  (affirmed,  27 
B.  64)  ;  every  bid  is  presumed  to 
be  in  good  faith,  and  the  burden  is 
on  those  who  contest  it  to  show  the 
contrary.     Gallagher  v.  Johnson,  31 

B.  24;  the  lowest  bid  cannot  be  re- 
jected as  not  in  good  faith  if  the 
Didder  intends  to  comply  with  it  and 
council  may  investigate  the  matter 
to  determine  whether  the  bidder 
does   so   intend.     lb. 

Council  should  disregard  infor- 
malities not  going  to  the  substance 
of  the  bid.     Compton  v.  Johnson,  9 

C.  C.  532. 

Council  cannot  consider  that  the 
bid  is  so  low  as  to  be  a  losing  one. 
Gallagher  v.  Johnson,  30  B.  139. 

Irregularities  in  opening  and  con- 
sidering a  bid  when  no  time  was 
fixed  for  the  opening  and  the  form 
of  bid  was  not  regulated,  are  not 
ground  for  injunction.  Sloane  v. 
People's  Electric  Kailway,  7  C.  C.  84. 

Bond. — Council  may  waive  bond 
required  by  notice  inviting  bids  if 
no  favoritism  is  intended  thereby. 
Sloane  v.  People's  Electric  Railway, 
7  C.  C.  84. 


Informality  in  the  bond  is  no 
ground  for  injunction.  Simmons  v. 
Toledo,  5  C.  C.  124. 

A  bond  by  one  person  not  men- 
tioning associates  is  sufficient, 
though  the  bid  mention  that  person 
and  his  "associates."  Compton  v. 
Johnson,  9  C.  C.  532;  Gallagher  v. 
Johnson,  30  B.   139. 

Check  deposited  by  bidder  will  be 
held  liquidated  damages  and  not  a 
penalty,  if  franchise  is  not  complied 
with,  and  will  be  forfeited  to  mu- 
nicipality, as  provided  in  resolution. 
Hattersly  v.  Waterville,  26  C.  C. 
226;  4  C.  C.  (N.  S.)  242  (aff'd  74 
O.  S.  — ) . 

When  bidding  not  necessary, 
— 'Where  the  grant  for  part  of  a 
street  railway  route  fails  because 
the  necessary  consents  were  not  ob- 
tained, the  new  grant  for  that  por- 
tion may  be  made  when  the  consents 
are  obtained,  without  further  bid- 
ding. Sanfleet  v.  Toledo,  10  C.  C. 
460  (affirmed,  54  O.  S.  620.) 

Bidding  is  not  necessary  in  the 
case  of  a  renewal  of  a  grant.  State 
ex  rel.  v.  E.  Cleveland  Railroad,  6 
C.  C.  318;  see  also  Clement  v.  City, 
16  B.  355  (affirmed  Supreme  Court, 
19  B.  74.) 

Rights  of  lowest  bidder  for  a 
street  railway  are  not  enforceable 
until  the  franchise  ordinance  has 
been  passed  and  its  terms  and  con- 
ditions accepted.  Raynolds  v.  Cleve- 
land, 13  Dec.  125;  24  C.  C.  215; 
2  C.  C.   (N.  S.)    139. 

Injunction  against  contract, 
see  Tucker  v.  Newark,  19  C.  C.  1,  3 ; 
Knorr  v.  Miller,  25  B.  128;  John- 
son v.  West  Side  St.  Ry.,  10  B.  345; 
Mathers  v.  Cincinnati,  3  B.  709; 
Johnston  v.  Cincinnati,  26  B.  223. 

(4)  Consents  —  Character.  — 
Consents  inure  to  the  lowest  bidder, 
no  matter  for  whom  obtained.  State 
v.  Bell,  34  O.  S.  194;  Knorr  v.  Mil- 
ler, 5  C.  C.  609  (affirmed,  27  B. 
64)  ;  Mathers  v.  Cincinnati,  3  B. 
551. 

Property  owner  giving  consent 
cannot  limit  it  to  any  one  corpora- 
tion, and  if  he  does  so,  the  limita- 
tion is  void  and  the  consent  inures 
to  the  lowest  bidder.  Railway  Co. 
v.  Day,  73  O.  S.  83;  State  ex  rel. 
v.  Bell,  34  O.  S.  194. 

As  to  consents  to  extensions  of 
street  railwavs,  however,  see  section 
3339  R.  S.  and  notes,  page  704. 


152 


THE  OHIO  MUNICIPAL  CODE. 


[Code  §  30 


Consents  do  not  have  to  be  en- 
tered on  the  records  of  council  or  be 
made  a  part  of  the  ordinance.  San- 
fleet  v.  Toledo,  10  C.  C.  460.  They 
need  not  be  obtained  before  the  calls 
for  bids  and  need  not  be  to  the  par- 
ticular manner  of  construction. 
JSloane  v.  People's  Electric  Railway, 
7  C.  C.  84. 

Consent  of  abutting  lot  owners  to 
the  construction  of  a  street  railroad 
are  not  property  rights  and  cannot 
be  appropriated.  Hamilton  G.  &  C. 
Traction  Co.  v.  Parish,  67  O.  S.  181. 

How  determine  majority. — 
The  majority  required  is  the  major- 
ity of  abutting  owners  on  each  sepa- 
rate street.  Cable  Ry.  v.  Neare,  54 
O.  S.  153;  but  see,  also,  Rapp  v.  Cin- 
cinnati, 12  B.  119. 

What  consents  counted,  see  Sim- 
mons v.  Toledo,  8  C.  C.  535,  affirmed, 
31  B.  367  (agent  authorized  to  use 
his  judgment  in  signing  consent; 
agent's  signature  of  married  wom- 
an's name  in  her  maiden  name; 
agent  signing  on  oral  authority,  but 
see  Rapp  v.  Cincinnati,  12  B.  119; 
signature  of  son,  having  charge  of 
property  and  owning  remainder 
subject  to  life  estate;  trustee  hav- 
ing control  over  property  with  full 
powers)  ;  Rapp  v.  Cincinnati,  12  B. 
119;  Ireton  Bros.  v.  Traction  Co., 
15  Dec.  129;  (person  holding  life 
estate  under  a  will ;  tenant  by  cur- 
tesy or  dower )  ;  Day  v.  Railway  Co., 
27  C.  C.  60;  5  C.  C.  (N.  S.)  393 
(consent  of  wife  signed  by  husband 
with  authority;  consent  signed  by 
agent  authorized;  consent  signed 
a  year  before  passage  of  ordinance, 
but  while  a  similar  ordinance  pend- 
ing; consent  signed  by  vendee  un- 
der contract  to  convey;  consent 
signed  by  agent  without  authority, 
but  subsequently  ratified ) . 

Consents  not  counted,  see  Sim- 
mons v.  Toledo,  supra;  Day  v.  Rail- 
way, supra  (signature  of  husband 
for  himself  and  wife  when  wife  is 
owner)  ;  Rapp  v.  Cincinnati,  supra; 
Day  v.  Railway,  supra  (husband 
signing  for  wife;  father  signing  for 
daughter;  president  of  corporation 
signing  without  authority  from 
board  of  directors ;  guardian  signing 
for  minors;  executors  with  power  to 
sell  signing)  ;  Schwab  v.  Traction 
Co.,  13  Dec.  116  (consent  of  a  mi- 
nor) ;  Sommers  v.  Cincinnati,  8  Rec. 
612  (consent  by  one  not  owning  the 
property,  though  afterward  ratified 
by  owner). 


As  to  when  consent  by  widow 
holding  dower  will  be  counted,  see 
Schwab  v.  Traction  Co.,  13  Dec.  116. 

Consent  by  firm  may  be  counted, 
though  property  is  not  used  for 
firm  purposes.     lb. 

Consent  by  telegram  was  held 
valid.     lb. 

A  tenant  in  common  can  be 
counted  for  his  proportion.  Sim- 
mons v.  Toledo,  8  C.  C.  535;  Ronne- 
baum  v.  Railway,  29  B.  338 ;  Day  v. 
Railway,  27  C.  C.  60. 

Where  owner  has  consented  and 
afterward  sold  the  property  and  the 
buyer  does  not  withdraw  signature, 
it  will  be  counted.  Simmons  v. 
Toledo,  8  C.  C.  535.  But  where  pur- 
chaser has  no  knowledge  of  previous 
consent,  it  is  not  counted.  Day  v. 
Railway,  27  C.  C.  60;  5  C.  C.  (N. 
S.)    393. 

Whether  council  may  consent  as 
to  municipal  property,  quere.  Rapp 
v.  Cincinnati,  12  B.  119. 

Conditional  consent. — Power  of 
council  to  act  on  the  consent  is  not 
limited  by  the  condition  of  the  con- 
sent as  to  the  time  of  the  comple- 
tion of  the  road.  Simmons  v.  To- 
ledo, 8  C.  C.  535. 

Consent  for  a  horse  railway  is 
not  a  consent  for  an  electric  rail- 
way. Sanfleet*  v.  Toledo,  10  C.  C. 
460.      (Affirmed,  54  O.  S.  620.) 

Consent  for  one  track  cannot  be 
used  where  a  double  track  is  pro- 
posed. Roberts  v.  Easton,  19  O.  S. 
78. 

Consent  on  condition  that  fran- 
chise is  passed  on  a  particular  date 
is  not  good  if  ordinance  not  passed 
at  that  time.  Day  v.  Railway  Co., 
27  C.  C.  60;  5  C.  C.   (N.  S.)   393. 

Consents  for  extension  of  a  speci- 
fied railway  not  good  for  original 
construction  of  another  railway. 
Day  v.  Railway  Co.,  27  C.  C.  60; 
5  C.  C.   (N.  S.)    393. 

Consent  for  construction  or  ex- 
tension along  a  certain  route  is  not 
consent  for  another  and  different 
route,  though  passing  by  same  prop- 
erty. Near  v.  Mt.  Auburn  Cable 
Rj.,  29  B.  171;  Ireton  Bros.  v. 
Traction  Co.,  15  Dec.  129.  But 
slight  departure  from  route  to  avoid 
difficult  curves  would  not  invalidate 
consent.  Ireton  Bros.  v.  Traction 
Co.,  15  Dec.  129;  2  N.  P.  (N.  S.) 
317. 

Conclusiveness  of  council's 
finding.  —  Obtaining  the  proper 
number   of   consents   is   a   condition 


Code  §30] 


STREET    RAILWAYS. 


153 


precedent  to  the  power  of  council  to 
authorize  the  railway.  And  coun- 
cil's finding  that  the  requisite  con- 
sents have  been  given  is  not  conclu- 
sive. .Roberts  v.  Easton,  19  O.  S. 
78;  Sommers  v.  Cincinnati,  8  Rec. 
012;  Day  v.  Railway,  27  C.  C.  60: 
5  C.  C.    (N.  S.)    393. 

But  where  council  has  deter- 
mined that  the  proper  consents  were 
given,  the  burden  is  on  one  denying 
this.  Simmons  v.  Toledo,  8  C.  C. 
535.  See,  also,  Cincinnati  College 
v.  Nesmith,  2  C.  S.  C.  R.  24;  Ireton 
Bros.  v.  Traction  Co.,  15  Dec.  129; 

2  N.  P.   (N.  S.)   317. 

The  rule  that  the  presumption  is 
that  council  acted  with  sufficient 
consents  before  it,  does  not  extend 
to  the  validity  of  any  single  con- 
sent, where  the  validity  of  such  con- 
sent is  attacked;  in  such  case  the 
validity  of  the  consent  is  to  be  de- 
termined as  a  fact  under  the  ordi- 
nary rules  of  evidence;  and  if  the 
consent  is  by  an  agent,  authority 
must  be  shown.  Day  v.  Railway, 
27  C.  C.  60;  5  C.  C.   (N.  S.)   393. 

When  necessary. — Extensions 
or  additional  switches  of  existing 
railway  require  consents.  Harner  v. 
Columbus,  etc.,  Railway,  29  B.  387 ; 
Chambers  v.  Traction  Co.,  27  C.  C. 
193;  5  C.  C.  (N.  S.)  298  (aff'd  73 
O.  S.  346 ) .  Consents  are  necessary 
for  a  new  track,  although  there  is  a 
double  track  of  another  company  al- 
ready on  the  street.  Sanfieet  v.  To- 
ledo, 10  C.  C.  460.  So,  also,  where 
there  is  a  single  track  already  down 
and  it  is  desired  to  lay  another 
track  on  the  same  street.  Roberts 
v.  Easton,  19  O.  S.  78. 

When  not  necessary. — Consents 
held  not  necessary  for  a  mere  tem- 
porary track,  the  right  to  lay  such 
track  being  a  revocable  license  and 
not  a  grant.    Mathers  v.  Cincinnati, 

3  B.  709.  Consents  are  not  neces- 
sary in  the  case  of  a  renewal  of  the 
grant.  State  v.  East  Cleveland  R.  R. 
Co.,  6  C.  C.  318.  Consents  are  not 
necessary  where  one  company  is  ap- 
propriating the  use  of  parts  of  the 
tracks  of  another  company.  Consol- 
idated Street  Railway  v.  Toledo 
Street  Railway,  6  N.  P.  537;  State 
v.  Electric  Street  Railway,  19  C.  C. 
79. 

Purchased  consents. — Consents 
of  the  property  owners  or  withdraw- 
al of  such  consents  may  be  properly 
induced  by  the  payment  of  consider- 
ation.     Cleveland    v.    Railway    Co., 


3  C.  C.   (N.  S.)  563;  23  C.  C.  373. 

"There  is  no  public  policy  in  this 
state  against  giving  such  consent  for 
a  valuable  consideration,  moving 
from  the  street  railway  to  such  lot 
owner."  Hamilton  G.  &  C.  Traction 
Co.  v.  Parish,  67  O.  S.  181;  see, 
also,  Makemson  v.  Kaufl'man,  35  O. 
S.  444. 

Withdrawal  of  consents. — See 
§  3439a  (page  705),  relating  to 
withdrawal  of  consents.  And  see 
Hamilton  G.  &  C.  Traction  Co.  v. 
Parish,  67  O.  S.  181. 

Right  of  action  for  want  of 
consents. — Where  council  grants 
the  right  to  construct  a  railroad 
without  the  consent  of  abutting  own- 
ers as  required  by  statute,  such  own- 
ers may  enjoin  the  construction  of 
the  road.  Roberts  v.  Easton,  19  O. 
S.  78.  Whether  quo  warranto  would 
lie  because  of  failure  to  secure  con- 
sents, see  State  v.  Railway  Co.,  19 
C.  C.  79.  Injunction  for  want  of 
consents  can  be  brought  only  by 
abutting  property  owner.  Action 
will  not  lie  by  taxpayer  as  such. 
Simmons  v.  Toledo,  5  C.  C.  124; 
Sommers  v.  Cincinnati,  8  Rec.  612; 
Harrison  v.  Mt.  Auburn  Cable  Rail- 
way, 17  B.  265;  Glidden  v.  Cincin- 
nati, 30  B.  213;  Hamilton  v.  C.  & 
H.  Street  Railroad,  5  N.  P.  457. 
Abutting  owner  can  complain  only 
for  the  want  of  consents  on  his  own 
street.  Glidden  v.  Cincinnati,  30  B. 
213;  Mathers  v.  Cincinnati,  3  B. 
709;  Barney  v.  Railway,  30  B.  286. 

Motive  of  plaintiff  in  bringing  ac- 
tion is  not  material.  Hamilton  G. 
&  C.  Traction  Co.  v.  Parish,  67  O.  S. 
181.  And  it  can  make  no  difference 
whether  his  right  is  clear  or  not, 
only  so  that  it  exists.     lb. 

(5)  Period  of  grant. — Renewal 
of  grant  for  period  longer  than  that 
allowed  by  law  held  valid  for  legal 
period.  Sommers  v.  Cincinnati,  8 
Rec.   612. 

Unlimited  grants  made  prior  to 
statutory  limitation  held  perpetual. 
State  ex  rel.  v.  Columbus  Ry.  Co., 
1  C.  C.  (N.  S.)  145;  24  C.  C.  609; 
but  see  73  O.  S.  363.  But  such 
grants  are  subject  to  revocation  by 
legislature.    lb. 

(6)  Release  from  obligation. — 
Such  a  section  as  this  forbids  any 
release  by  municipal  authorities  of 
amount  due  the  city  under  its 
street  railway  grant,  and  neither  the 
principles  of  account  stated  nor  of 
accord  and  satisfaction  based  upon  a 


154  the  ohio  municipal   code.  [Code  §  30 

less  amount  than  that  actually  due  the  terms  of  a  grant.     Clement  v. 

have    any    application.      Cincinnati  City,   16  B.  355.      (Affirmed  in  Su- 

St.  Railway  Co.  v.  Cincinnati,  8  N.  preme  Court,  19  B.  74.)      There  is 

P.  80.  nothing   to   prevent    a    city    council 

But    a    provision    such    as    this  and  a  street  railway  company  from 

would    not   prohibit   municipal   cor-  terminating   a   grant  by   agreement 

poration  from  changing  the  rate  of  previous  to  its  expiration,  for  good 

fare  upon  proper  consideration.     St.  cause,     and     renewing     the     grant. 

Ry.  v.  Cleveland,   12  0.  F.   D.  635.  State  v.  E.  Cleveland  Railroad  Co., 

Better   accommodation   would   be   a  6  C.  C.  318. 
consideration  for  the  modification  of 

FORM  OF  RESOLUTION  ESTABLISHING  ROUTE  AND  AUTHORIZING 
ADVERTISEMENT  FOR  BIDS. 

RESOLUTION.    . 

Be  it  resolved  by  the  council  of  the  city  [or  village]  of ., 

State  of  Ohio,  that  the  application  of ,  ( here  insert 

name  of  company  or  individual)   for  a  grant  and  permission  to  construct, 

maintain  and  operate  a  street  railroad  in  the  city  [or  village]  of , 

State  of  Ohio,  on  the  route  hereinafter  described,  be  received  and  placed  on 
file  and, 

Be  it  resolved,  that  there  is  hereby  established  a  street  railroad  route  in 
the  city  [or  village]  of over,  along  and  upon  the  fol- 
lowing streets  (here  define  the  route)  upon  which  route  there  may  be  main- 
tained and  operated  a  single  [or  double]  track  street  railway  with  the  neces- 
sary switches,  turnouts,  curves,  loops,  Y's,  poles,  wires  and  all  other 
necessary  fixtures  and  apparatus,  and  to  be  operated  by  electricity  or  other 
motive  power  except  steam,  and  to  be  furnished  and  equipped  as  a  first  class 
street  railway,  as  may  be  more  particularly  provided  for  in  the  ordinance 
making  the  grant  to  the  successful  bidder  therefor;  and, 

Be  it  resolved,  that  the  grant  for  the  operation  of  such  street  railroad 

over  the  route  herein  established  shall  be  for  a  period  of years 

(not  more  than  25  years)  and, 

Be  it  resolved,  that  a  grant  for  the  above  period  over  said  route  shall  be 
made  to  the  individual,  individuals  or  company  which  shall  agree  to  carry 
passengers  over  said  route  and  from  and  to  all  points  thereon  for  the  lowest 
rates  of  fare  and, 

Be  it  resolved,  that  the  clerk  of  the  city  [or  village]  be  and  he  is  hereby 
instructed  and  directed  to  give  notice  by  publication  of  the  said  application 

of (here  insert  name  of  applicant)  as  required  by  law, 

and  in  said  notice  to  invite  bids  for  the  construction,  maintenance  and  ope- 
ration of  a  street  railroad  over  said  route  in  accordance  with  the  terms 
and  conditions  of  this  resolution. 

Passed ,19 

Attest: 


Clerk. 

President  of  Council. 


Code    §    30]  STREET    RAILWAYS.  155 

FORM   OF  ADVERTISEMENT   INVITING  BIDS  FOR  STREET   RAIL- 

WAY    GRANTS. 

LEGAL  NOTICE. 

City  [or  village]   of ,  Ohio. 

Notice    is   hereby   given  that   on   the day   of ,    19 ... , 

application  was  made  to  the  council  of ,  by ,  for 

permission  to  construct,  maintain  and  operate  a  street  railroad  within 
said  city  [or  village]  over,  along  and  upon  the  following  streets,  to- wit: 
(here  describe  route)  and, 

That  a  street  railroad  route  over,  along  and  upon  the  above  named 
streets  has  been  established  in  the  manner  provided  by  law,  upon  which 
route  there  may  be  constructed,  maintained  and  operated  for  a  period  of 

years  a  single   [or  double]   track  street  railroad  operated  by 

electricity  or  other  motive  power  except  steam,  and  subject  to  the 
terms  and  conditions  provided  in  the  resolution  establishing  said  route 
and  directing  this  advertisement,  on  file  in  the  office  of  the  clerk  of  the 
city  [or  village]   of    ,  State  of  Ohio ;   and 

That  bids  will   be  received  up  to   12  o'clock  noon, ,   19..., 

for  the  construction,  maintenance  and  operation  of  a  street  railroad  over 
said  route,  subject  to  the  terms  and  conditions  set  forth  in  said  resolution 
and  for  the  lowest  rate  of  fare  for  transporting  passengers  along  and  over 
said  route. 


Clerk.  

President  of  Council. 

FORM  OF  STREET  RAILWAY  GRANT. 
Ordinance  No 

Granting  leave  and   permission  to to   construct,   maintain 

and  operate  a  street  railroad  over,  along  and  upon  certain  streets  in  the 
city  [or  village]  of ,  State  of  Ohio, 

Whereas,  on  the day  of ,  19   . . . ,   made 

application  in  writing  to  the  council  of  the  city  [or  village]  of , 

State  of  Ohio,  for  the  right  to  construct,  maintain  and  operate  a  street 
railroad  over,  along  and  upon  certain  streets  in  the  city  [or  village]  of 
,  State  of  Ohio,  hereinafter  specifically  set  forth  and, 

Whereas,  on  the day  of ,  19. .  .  .,  -«  resolution  was  duly 

passed  establishing  a  street  railway  route  over  such  streets  and  notice 
of  the  establishment  of  said  route  and  of  said  application  was  duly  pub- 
lished according  to  law,  and, 

Whereas, [naming  grantee]  has  made  a  bid  for  said  route, 

which  said  bid  offers  rates  of  fare  which  are  the  lowest  rates  bid,  and  has 
previously  obtained  the  written  consent  of  a  majority  of  the  property 
holders  upon  each  of  the  said  streets  or  parts  thereof  on  the  line  of  the 
said  proposed  railroad  represented  by  the  feet  front  of  the  property  abut- 
ting thereon; 


156  THE    OHIO    MUNICIPAL     CODE.  [Code    §    31 

Now  therefore,  be  it  ordained  by  the  council  of  the  city  [or  village]  of 
,  State  of  Ohio. 

Sec.  1.  That  said (naming  grantee)  its  successors  and  as- 
signs be  and  are  hereby  granted  the  right  and  permission  to  construct, 
maintain  and  operate  a  single  [or  double]  track  street  railway  to  be  ope- 
rated by  electricity  or  other  motive  power  except  steam,  with  the 
necessary  switches,  turnouts,  curves,  loops,  Y's,  poles,  wires  and  all  other 
necessary  fixtures  and  apparatus,  over,  along  and  upon  the  following 
streets  in  the  city  [or  village]  of ,  viz:  (here  insert  descrip- 
tion of  route). 

Sec.  2.  (Describe  character  of  construction  and  equipment,  agreements 
as  to  repairs  of  streets  and  other  special  requirements  desired.) 

Sec.  3.     This  grant  shall  remain  in  force  for  the  period  of 

years  from  and  after  its  acceptance  by (name  of  grantee) . 

Sec.  4.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law  and  after  the  filing  with  the  city   [or 

village]  clerk,  of  the  written  acceptance  thereof  by (name  of 

grantee). 

Passed ,19 

Attest: 


Clerk.  President  of  Council. 

Sec.  31.  [Vested  rights  and  contracts  already  entered  into  not 
to  be  impaired  or  enlarged  by  this  act;  certain  unexpired  fran- 
chises are  hereby  regranted.]  Nothing  herein  contained  shall 
be  construed  to  impair  the  rights  of  abutting  property  owners, 
where  unnecessary  or  additional  burdens  are  placed  upon  the 
streets  by  operation  of  any  grants  herein  authorized  to  be  made, 
and  nothing  in  this  act,  or  any  part  thereof,  shall  be  construed 
to  impair  or  enlarge  the  rights  of  any  corporation  now  using  the 
streets  of  any  municipality  in  the  state  under  authority  of  any 
law  now  or  heretofore  in  force ;  but  all  unexpired  grants  of 
rights  or  franchises  heretofore  made  by  any  municipality,  in 
accordance  with  the  provisions  of  any  statute  or  act  of  the  gen- 
eral assembly  existing  at  the  time  when  they  were  made,  and 
which  have  been  accepted  and  where  money  has  been  expended 
in  good  faith  on  account  thereof,  are  hereby  regranted  for  such 
unexpired  portion  of  the  respective  periods  of  the  original 
grants  in  accordance  with  the  terms  and  conditions  of  the  same ; 
any  law,  or  part  of  law,  to  the  contrary  notwithstanding.1 


Code  §  32]    taxation,  levy  of  taxes. 


157 


(1)   Validating  grants.— See,  as 

to  curative  statute  validating  ultra 
vires  grants  of  a  municipality,  Mill- 
creek  Valley  St.  Ry.  v.  Carthage,  18 
C.  C.  216;  see,  also,  Hume  v.  Trac- 
tion Co.,  Cincinnati  Ct.  Index,  Aug. 
1,  1902;  Kumler  v.  Silsbee,  38  0.  S. 


445 ;  State  v.  Hoffman,  35  0.  S.  435. 
Knorr  v.  Miller,  5  C.  C.  609  (aff'd 
27  B.  64,  187). 

The  latter  part  of  this  section  was 
held  unconstitutional  in  Horstman 
v.  St.  Ry.  Co.,  1  N.  P.  (N.  S.)  25; 
13  Dec.  670. 


Fourth.     Taxation. 

(a)  Levy  of  Taxes;  Restrictions. 
Sec.  32.  [Power  of  council  to  levy  and  collect  taxes.]1  The 
council  of  every  municipal  corporation  shall  have  power  to  levy 
and  collect  taxes  upon  all  the  real  and  personal  property  within 
the  corporation  for  the  purpose  of  paying  the  expenses  of  the 
corporation,  constructing  all  improvements  authorized,  and  ex- 
ercising all  the  general  and  special  powers  conferred  by  law.2 


(1)  Old  sections,  2262,  2263, 
2682,  2683,  2684  R.  S.,  repealed. 
For  taxation  in  hamlets,  see  §  2681 
R.  S.  in  Part  II. 

(2)  No  inherent  power  to  tax. 
■ — A  municipal  corporation  has  not 
the  inherent  power  to  tax.  It  can 
exercise  this  power  only  when  clear- 
ly delegated  to  it  by  statute.  Mays 
r.  Cincinnati,  1  O.  S.  268;  and  it  is 
"strictly  limited  to  the  manner  of 
exercise  which  the  statutes  provide. 
Reed  v.  Toledo,  18  O.  161,  166. 

Public  purpose  —  Legislative 
discretion. — Taxes  should  be  levied 
only  for  those  purposes  which  prop- 
erly constitute  a  public  burden.  But 
what  is  for  the  public  good  and 
what  are  public  purposes  and  what 
properly  constitutes  a  public  bur- 
den are  questions  which  the  legis- 
lature must  decide  upon  its  own 
judgment  and  in  respect  to  which 
it  is  vested  with  a  large  discretion 
which  cannot  be  controlled  by  the. 
courts,  except,  perhaps,  where  its 
exercise  is  clearly  evasive,  and 
where,  under  pretens?  of  lawful 
authority,  it  has  assumed  to  exer- 


cise one  that  is  unlawful.  Walker 
v.. Cincinnati,  21  O.  S.  14,  41;  and 
the  power  of  the  legislature  to  auth- 
orize local  taxation  cannot  be  ju- 
dicially denied  on  the  ground  that 
the  purpose  for  which  it  is  exercised 
is  not  local  unless  the  absence  of 
all  local  interest  is  clearly  apparent. 
Walker  v.  Cincinnati,  21  O.  S.  14; 
State  v.  Trustees,  20  O.  S.  362. 

Payment  of  debts. — It  is  a  general 
principle  of  municipal  law  that 
where  a  power  is  granted  to  a  mu- 
nicipality to  incur  indebtedness,  a 
commensurate  power  to  levy  the 
necessary  tax  to  discharge  the  in- 
debtedness, is  implied.  Sec.  2683 
R.  S.  was  held  to  confer  power  to 
levy  a  tax  sufficient  to  satisfy  a 
valid  public  debt.  United  States 
v.  Kent,  12  O.  F.  D.  422;  and  it  is 
no  defense  to  an  action  to  compel 
the  municipality  to  pay  the  inter- 
est on  bonds  issued  by  it,  that  it 
needs  all  the  money  it  is  allowed  to 
raise  by  statute,  to  pay  its  general 
current  expenses.     lb. 

For  natural  gas  toorks. — Supply- 
ing the  city  with  natural  gas  is  a 


158 


THE    OHIO    MUNICIPAL     CODE. 


[Code  §  33 


public  use  for  which  the  taxing 
power  may  be  exercised.  State  ex 
rel.  v.  Toledo,   48  0.  S.   112. 

Uniformity  —  Annexed  territory. 
— A  tax  to  pay  bonds  of  a  vil- 
lage annexed  to  a  city  levied  on  the 
annexed  territory  alone,  is  not  void 
for  want  of  uniformity.  Cleveland 
v.  Heisley,  41  0.  S.  670. 

As  to  levy  of  municipal  tax  upon 
territory  newly  annexed  to  the  mu- 
nicipality, see  State  v.  Craig,  21 
C.  C.  13. 

An  incorporated  village  is  the 
proper  party  on  whose  relation  an 
action  for  a  writ  of  mandamus  may 
be  maintained  to  compel  the  county 
auditor  to  place  the  municipal  tax 
upon  property  newly  annexed  to  the 
village.     State  v.  Craig,  21  C.  C.  13. 


General  and  special  statutes. — 

See  Findlay  Gas  Light  Co.  v.  Find- 
lay,  2  C.  C.  237;  Dunham  v.  Opes, 
3  C.  C.  274,  relating  to  power  of 
council  under  the  former  general 
statutes  relating  to  taxation,  where 
there  were  special  statutes  covering 
the  case  for  which  the  power  to  tax 
was  exercised. 

Distinction  between  tax  and 
local  assessment. —  See  Hill  v. 
Higdon,  5  0.  S.  243;  Reeves  v. 
Treas.  Wood  Co.,  8  O.  S.  333;  Ses- 
sions v.  Crunkilton,  20  O.  S.  349; 
Ridenour  v.  Saffin,  1  H.  464. 

Distinction  between  tax  and 
license  fee,  see  Mays  v.  Cincinnati. 
1  O.  S.  268;  Baker  v.  Cincinnati,  11 
0.  S.  534 ;  Marmet  v.  State,  45  0.  S. 
63;  Cincinnati  v.  Bryson,  15  O.  625. 


Sec.  33.  [Maximum  of  municipal  taxes  allowable  in  munici- 
palities.]1 The  aggregate  of  all  taxes  levied  by  any  municipal 
corporation,  exclusive  of  the  levy  for  county  and  state  purposes, 
for  schools  and  schoolhouse  purposes,  for  free  public  libraries 
and  library  buildings,  for  university  and  observatory  purposes, 
for  hospitals,  and  for  sinking  fund  and  interest,  on  each  dollar 
of  valuation  of  taxable  property  in  the  corporation  on  the  tax 
list,  shall  not  exceed  in  any  one  year  ten  mills.2 


(1)  Old    sections.— See    old    §§ 

2682,  2683,   2689,  2689a,  2689a (2), 
2689&,    (2689-1)   R.  S.,  all  repealed. 

(2)  What  taxes  included  in  ag- 
gregate amount  allowed. —  Under 
the  provisions  of  old  §  2684  R.  S., 
the  limitation  as  to  amount  of 
taxes  did  no.t  include  special  as- 
sessments. In  the  above  §  33  of  the 
Code,  special  assessments  are  not 
expressly  excluded,  though  on  gen- 
eral principles,  assessments,  not  be- 
ing strictly  a  tax,  would  not  be 
included    in    the    amount    of    taxes 


allowable.  See  Hunter  v.  Austin, 
9  C.  C.  583. 

Taxes  raised  on  the  general  levy 
for  street  improvement  were  former- 
ly held  to  be  included  in  the  total. 
State  ex  rel.  v.  Strader,  25  O.  S.  527, 
but  taxes  levied  to  pay  bonds  issued 
for  the  corporation's  part  of  a  street 
improvement  are  now  specially  ex- 
cepted by  §  53  of  the  Code. 

Whether  taxes  in  excess  of  the 
amount  here  authorized  could  be 
levied  to  pay  the  debts  of  a  munici- 
pal   corporation    in    the    absence  of 


Code  §§  34,  35]  taxation,  estimates  and  reports.   159 


any  provision  in  the  statute  to  that 
effect,  see  U.  S.  v.  Kent,  12  O.  F. 
D.  422. 

Taxes  levied  by  the  City  of  Cin- 
cinnati to  pay  interest  on  South- 
ern Railway  bonds  were  held  to  be 
included  in  the  aggregate  amount  al- 
lowed by  statutes  then  in  force. 
State  v.  Humphreys,   25  O.  S.   520. 

Under  former  statutes  taxes  lev- 
ied on  territory  of  a  village  an- 
nexed to  a  city,  to  pay  bonds  of  the 
village  for  improvements,  were  held 
to  be  included  in  the  aggregate 
amount  allowed  the  village.  Cleve- 
land v.  Heisley,  41  O.  S.  670.  And 
this  was  so  even  though  the  law 
requiring  general  levy  for  certain 
parts  of  street  improvement 
(street  intersections)  referred  to 
improvement  already  ordered.  To- 
ledo v.  Toledo,  22  B.  131. 

But  where  a  statute  authorizes  a 
tax  for  a  special  purpose,  this  may 


be  in  addition  to  the  limit  fixed  by 
the  general  statute.  Hunter  v.  Aus- 
tin, 9  C.  C.  583.  And  see  Walsh  v. 
Sisler,  20  C.  C.  264. 

Effect  of  ordinance  levying  ex- 
cess.—  An  ordinance  levying  a  tax 
in  excess  of  the  statutory  limit  or 
after  the  limit  has  been  exceeded  is 
wholly  void.  Cummings  v.  Fitch, 
40  O.  S.  56;  but  ordinance  levying 
an  additional  tax  after  limit  is 
reached,  though  void,  does  not  af- 
fect an  ordinance  for  tax  before 
limit  reached.  Cummings  v.  Fitch, 
40  O.  S.  56 ;  but  an  ordinance  levying 
an  amount  in  excess  of  the  limit  is 
not  good  up  to  the  statutory  limit, 
but  is  void  both  as  to  the  amount 
beyond  the  limit  and  the  amount 
within  the  limit.  Cleveland  v.  Heis- 
ley, 41  0.  S.  670. 

As  to  duty  of  county  auditor  and 
council  where  municiapl  tax  levy 
exceeds  limit,  see  §  40  of  the  Code. 


Sec.  34.  [When  greater  tax  may  be  levied ;  submission  of  ques- 
tion to  vote.]1  A  greater  tax  than  that  authorized  herein  may- 
be levied  by  the  council  of  any  municipal  corporation  for  any 
purpose  for  which  such  corporation  is  authorized  to  levy  taxes, 
if  the  proposition  to  make  such  additional  levy  shall  be  first 
submitted  to  a  vote  of  the  electors  of  the  corporation  under  an 
ordinance  prescribing  the  time,  place  and  manner  of  voting  on 
the  same,  and  approved  by  two-thirds  of  those  voting  on  the 
proposition.2 


(1)  Old  Section  2687,  R.  S.  re-  Gas  Light  Company  v.  Findlay,  2 
pealed.  C.  C.  237;  Dunham  v.  Opes,  3  C.  C. 

(2)  Section   2687   cited,   Findlay      274. 

Sec.  35.  [Heads  of  departments  to  report  estimates  to  mayor 
and  auditor  or  clerk.]1  On  or  before  the  first  Monday  in  March 
of  each  year  the  several  officers,  boards  and  departments  in  every 
municipal  corporation,   shall   report  an  estimate,   in  itemized 


160  the  ohio  municipal   code.  [Code  §  35 

form,  to  the  mayor  and  auditor  or  clerk  of  the  corporation,  stat- 
ing the  amount  of  money  needed  for  their  respective  wants  for 
the  incoming  year  and  for  each  month  thereof.2 

(1)  Old  sections.— See  old  §  The  provisions  of  §  2690a  to 
2690i  R.  S.,  repealed;  and  see  §  37  2690a,  requiring  estimates,  were 
infra.                                                               held  mandatory,  so  far  as  any  niu- 

(2)  Provision  mandatory. —  nicipal  expenditure -is  concerned,  in 
Provisions  such  as  these  requiring  Stem  v.  Cincinnati,  6  N.  P.  15.  But 
estimates  by  officers  and  boards  be-  whether  failure  to  observe  them 
fore  appropriations  are  made,  are  would  affect  the  validity  of  a  tax 
mandatory  and  expenditure  of  the  levy,  query  in  Stem  v.  Cincinnati, 
.city  funds  without  such  previous  es-  6  N.  P.  15. 

timate  may  be  enjoined.     Ampt  v. 
Cincinnati,  5  N.  P.  98. 

ORDER     OF     PROCEDURE     IN     MUNICIPAL     TAX     LEVIES     AND 
APPROPRIATIONS. 

The  fiscal  year  in  each  municipality  begins  January  first  and  ends 
December  thirty-first.  (§  42  of  the  Code.)  The  various  steps  to  be  taken 
by  municipal  officers  can  be  clearly  understood  only  by  bearing  this  fact 
in  mind.  The  order  of  procedure  in  municipal  tax  levies  and  appropriations 
is  as  follows: 

THE    TAX    LEVY. 

1.  Estimates  for  succeeding  fiscal  year,  to  be  furnished  to  the  mayor 
and  auditor  or  clerk  by  the  heads  of  the  various  departments,  on  or  before 
the  first  Monday  in  March,  stating  the  amount  of  money  needed  for  their 
respective  wants  for  the  next  fiscal  year,  beginning  January  first,  and  for 
each  month  thereof.      (§  35  of  the  Code.) 

Note. — The  language  used  in  the  section  is  "  the  incoming  year,"  but 
since  these  estimates  are  the  basis  for  the  budget  and  tax  levy  designed 
to  furnish  money  for  the  next  fiscal  year,  the  "  incoming  year  "  referred  to 
in  the  section  must  be  the  next  fiscal  year. 

2.  Estimates  for  year  beginning  April  first,  to  be  furnished  to  the  mayor 
and  auditor  or  clerk  by  the  heads  of  the  various  departments,  on  or  before 
the  last  Monday  in  March,  stating  the  amount  of  money  needed  for  their 
respective  wants  for  each  month.   (§  37  of  the  Code.) 

Note. — This  section  does  not  appear  in  the  bill  as  passed  by  the  senate, 
but  was  inserted  to  accomplish  the  same  purpose,  apparently,  as  §  35  above, 
and  would  do  so  but  for  the  inconsistency  in  requiring  the  estimates  to  be 
made  for  a  year  beginning  April  1,  instead  of  for  the  succeeding  fiscal  year 
beginning  January  1.  There  is  no  necessary  conflict,  however,  in  furnish- 
ing the  estimates  required  both  by  §  35  and  §  37,  and  the  latter  would 
serve  the  special  purpose  of  affording  comparison  between  immediate  and 
anticipated  needs  as  well  as  the  source  and  amount  of  balances  or  defi- 
ciencies which  may  be  expected  in  the  several  funds  at  the  close  of  the 
current  fiscal  year. 


Code  §  36]   TAXATION.   ESTIMATES  AND  REPORTS.        161 

3.  Auditor's  or  Clerk's  Statement,  furnished  the  mayor  and  council 
and  each  member  thereof,  on  or  before  the  first  Monday  in  April,  showing 

(1)  balances  at  end  of  last  fiscal  year,  (2)  monthly  expenditures  out  of 
each  fund  and  out  of  all  funds  for  the  preceding  fiscal  year,  (3)  annual 
expenditures   from  each   fund   for    each  of  the   last  five  fiscal  years,   and 

(4)  monthly  average  of  expenditures  from  each  fund  for  the  preceding 
fiscal  year  and  total  monthly  average  from  all  funds  for  the  five  preceding 
fiscal  years.     (  §  36  of  the  Code. ) 

4.  The  Annual  Budget,  submitted  to  council  by  the  mayor  on  the 
first  day  of  April,  based  upon  the  annual  estimates  furnished  him  by  the 
departments.  The  items  of  any  of  these  the  mayor  may  revise  and  change, 
but  he  may  not  increase  the  total  of  any  such  estimate.  The  budget  should 
show  the  needs  of  the  several  municipal  departments  for  the  succeeding 
fiscal  year,  and  may  conveniently  be  in  the  form  of  a  message  from  the 
mayor,  submitting  to  council  a  proposed  ordinance  for  the  annual  tax 
levy.      (  §  38  of  the  Code. ) 

5.  Tax  Levy  Ordinance,  passed  by  council,  after  examining  and  revising, 
the  budget.  It  should  fix  the  percentage  or  rate  of  taxes  to  be  levied  for 
the  several  municipal  purposes  allowed  by  law.     (§  39  of  the  Code.) 

6.  Submission  to  Tax  Commissioners  of  tax  levy  ordinance.  (§§39  and 
49  of  the  Code.) 

7.  Submission  to  Mayor  for  approval.  The  ordinance  as  approved  by  the 
Tax  Commission,  or  as  passed  over  its  rejection  by  council,  should  be 
submitted  to  the  mayor  for  approval.  If  the  mayor  disapproves  the  ord- 
inance it  may  be  passed  over  his  veto  by  a  two-thirds  vote  of  council. 
(§  125  of  the  Code.) 

8.  Publication  of  Ordinance  in  the  manner  required  by  §  124  of  the 
Code  and  the  statutes  therein  referred  to. 

9.  Certification  to  County  Auditor  on  or  before  the  first  Monday  in 
July,  the  rate  of  taxes  levied  by  the  municipality.      (§  40  of  the  Code.) 

THE     SEMI-ANNUAL    APPROPRIATIONS. 

1.  Appropriating  Ordinance  for  first  six  months  of  fiscal  year  must  be 
passed  at  the  beginning  of  the  year,  making  detailed  appropriations  of  the 
moneys  in  the  treasury  (or  estimated  to  come  in  during  the  six  months) 
for  each  of  the  several  objects  for  which  the  municipality  has  to  provide, 
and  dividing  the  same  among  all  the  various  funds  for  said  six  months. 
Council  may  also  in  this  ordinance  set  apart  such  sum  as  it  may  deci  : 
proper  as  a  "  contingent  fund  "  to  provide  for  deficiencies  in  any  of  the 
regular  funds  which  may,  by  any  unforseen  emergency,  occur  during  the 
six  months.  The  ordinance  should  be  published,  as  one  of  a  general  nature. 
(§§   43,   122  and   124  of  the   Code.) 

2.  Appropriating  ordinance  for  second  six  months  of  fiscal  year,  must  be 
passed  at  the  beginning  of  the  second  half  of  said  year,  and  the  same 
formalities  observed  as  above. 

Sec.  36.  [Statements  to  be  furnished  by  city  auditor  and  vil- 
lage clerk.]1      On  or  before  the  first  Monday  in  April  of  each 


162  the  ohio  municipal   codb.  [Code  §  37 

year  the  auditor  of  every  city  and  clerk  of  every  village  shall 
furnish  to  the  mayor  and  council  and  to  each  member  thereof, 
the  following  statements,  which  council  may  require  to  be 
printed  :2 

1.  A  statement  showing  the  balance  standing  to  the  credit  or 
debit  of  the  several  funds  on  the  balance  sheet  of  the  corpora- 
tion at  the  end  of  the  last  fiscal  year  immediately  preceding  said 
first  Monday  of  April. 

2.  A  statement  showing  the  monthly  expenditures  out  of  each 
fund  in  the  twelve  months,  and  the  monthly  expenditures  out  of 
all  the  funds  in  the  twelve  months  of  the  fiscal  year  immediately 
preceding  said  first  Monday  of  April. 

3.  A  statement  showing  the  annual  expenditures  from  each 
fund  for  each  year  for  the  five  fiscal  years  immediately  preced- 
ing said  date. 

4.  A  statement  showing  the  monthly  average  of  such  expend- 
itures from  each  of  the  several  funds  for  the  preceding  fiscal 
year,  and  also  the  total  monthly  average  from  all  of  them  for 
the  ^ye  preceding  fiscal  years.3 

(1)  Old  section. —  See  §  2690f.  ments  mentioned  in  this  section. 
R.  S.,  repealed.  But  council  may  require  them  to  be 

(2)  The  requirements  of  §  124  of  published  as  well  as  printed.  Opin- 
the  Code  should  not  be  construed  as  ion  of  Attorney-General  on  file  ir 
making  it  compulsory  upon  munici-  his  office,  dated  Dec.  3,  1902. 

pal  authorities  to  publish  the  state-  ( 3 )  See  notes  to  §  35,  supra. 

Sec.  37.  [Reports  to  mayor  and  council;  heads  of  department* 
to  report  estimates  to  mayor  and  auditor.]  The  directors  and 
officers  provided  for  in  this  act  shall  upon  request  forthwith 
furnish  to'  the  mayor  or  council  any  information  desired  in 
relation  to  the  affairs  of  their  respective  offices.  To  enable  the 
mayor  to  make  up  his  annual  budget,  it  shall  be  the  duty  of  each 
director  or  board  and  of  each  officer  provided  for  in  this  act,  on 
or  before  the  last  Monday  in  March  of  each  year,  to  make  and 


Code  §  38]         taxation,     annual  budget.  163 

file  with  said  mayor,  and  also  with  the  auditor,  a  carefully  pre- 
pared and  itemized  estimate  of  the  amount  of  money  needed  in 
such  department  or  office  for  all  purposes  for  the  ensuing  year, 
beginning  on  the  first  day  of  the  next  April,1  said  estimate  to  be 
given  for  each  month. 

( 1 )    See  notes  and  order  of  proce  dur*  under  §  35  supra. 

Sec.  38.  [Mayor's  report  to  council;  annual  budget;  how  made 
up,  etc.]1  The  mayor  shall  communicate  to  council  from  time 
to  time,  a  statement  of  the  finances  of  the  municipality  and  such 
other  information  relating  thereto  and  to  the  general  condition 
of  the  affairs  of  the  municipality  as  he  may  deem  proper  or  as 
may  be  required  by  council.  He  shall  on  the  first  day  of  April 
of  each  year  submit  to  council  the  annual  budget  2  of  current 
expenses  of  the  municipality,  any  item  of  which  may  be  reduced 
or  omitted  by  council,  but  council  shall  not  increase  the  total  of 
said  budget.  In  the  making  of  such  annual  budget,  the  mayor 
shall  have  power  to  revise  and  change  any  and  all  items  in  the 
annual  estimates  furnished  to  him  by  the  directors  and  officers 
of  the  municipality  as  prescribed  in  this  act,  but  said  mayor 
shall  not  have  power  to  increase  the  total  of  any  such  estimate 
when  including  the  same  in  his  annual  budget  to  council.  He 
shall  on  said  date,  and  at  such  other  times  as  he  may  deem  ex- 
pedient, report  to  council  concerning  the  affairs  of  the  corpora- 
tion, and  make  such  recommendations  to  council  as  he  may  deem 
proper  for  the  welfare  of  the  municipality. 

[Board  of  examiners;  appointment,  qualifications,  duties,  etc.] 
He  may  at  any  time  appoint  competent,  disinterested  persons, 
not  exceeding  three  in  number,  not  more  than  two  of  whom  shall 
be  of  the  same  political  party,  to  examine  without  notice  the 
affairs  of  any  department,  director,  officer  or  employe  in  the  city 
government,  for  the  purpose  of  ascertaining  facts ;  in  connection 
with  such  examination,  the  mayor  or  such  appointees  shall  have 


164  the   ohio   municipal   code.     [Code  §§  39,  40 

full  power  to  compel  the  attendance  and  testimony  of  witnesses, 
to  administer  oaths  and  to  examine  such  persons  as  they  shall 
deem  necessary,  and  to  compel  the  production  of  books  and 
papers;  and  the  result  of  such  examination  shall  be  recorded  in 
the  office  of  said  mayor  and  shall  also  be  transmitted  by  him  to 
the  council  without  delay  and  the  council  shall  give  to  said 
examiners  reasonable  compensation  for  such  services. 

( 1 )   Old     sections. —  See    old     §  ( 2 )    See  notes  and  order  of  pro- 

2690i  R.  S.  repealed,  and  see  §  1750       cedure  under  §  35  suprz. 
R.  S.  not  repealed. 

Sec.  39.  [Duty  of  council  as  to  examination,  etc.,  of  annual 
budget;  duty  of  board  of  tax  commissioners.]1  The  council  shall 
examine  and  revise  the  annual  budget  submitted  by  the  mayor 
as  provided  in  the  next  preceding  section  of  this  act,  and  after  it 
shall  have  determined  by  ordinance  the  percentage  to  be  levied 
for  the  several  purposes  allowed  by  law  upon  the  real  and  per- 
sonal property  in  the  corporation  returned  on  the  grand  duplicate 
the  same  shall  be  submitted  by  the  council  to  the  board  of  tax 
commissioners  hereinafter  provided,  which  board  of  tax  com- 
missioners shall  examine  and  return  same  to  the  council  within 
ten  days,  as  provided  by  law,  together  with  such  suggestions  and 
recommendations  as  it  may  deem  proper.2 

(1)  Old  sections.— Compare  §§  Amjlt  v.  Cincinnati,  21  B.  216  and 
2690a,  2690c,  R.  S.,  special  acts,  re-  could  reject  any  or  all  the  levy, 
pealed.  but  could  not  increase  it  or  modify 

(2)  Changes  in  levy  by  com-  it.  Ampt  v.  Cincinnati,  4  C.  C.  253. 
missioners. —  Under  the  former  See  §  49  of  the  Code;  and  notes 
special  act  (2690gr  R.  S.)  the  tax  and  order  of  procedure  under  § 
commissioners  could  exercise  a  veto  35,  supra. 

power    over    the    levy    by    council. 

Sec.  40.  [Percentage  of  tax  to  be  certified  to  county  auditor; 
his  duty  thereupon.]1  Council  shall  cause  to  be  certified  to  the 
auditor  of  the  county,  on  or  before  the  first  Monday  in  July,2 
annually,  the  rate  of  taxes  levied  by  it  on  the  real  and  personal 


Code  §  40]  taxation,     certification  and  collection.  165 

property  in  the  corporation  returned  on  the  grand  duplicate, 
who  shall  place  the  same  on  the  tax  list  of  the  county  in  the 
same  manner  as  township  taxes  are  by  law  placed  thereon,3  the 
ordinance  prescribing  the  levy  shall  specify  distinctly  each  and 
every  purpose  for  which  the  levy  is  made  and  the  per  cent, 
thereof,  and  the  county  auditor  if  he  finds  that  the  tax  levy 
certified  to  him  by  the  council  of  any  city  or  village  exceeds  the 
aggregate  limit  allowed  by  law,  shall  have  no  authority  to  place 
the  same  on  the  tax  list  and  the  levy  for  such  municipal  corpora- 
tion shall  not  be  valid  or  collectible  against  any  real  or  personal 
property  in  the  corporation.  If  such  tax  levy  is  in  excess  of  the 
limit  allowed  by  law  then  the  auditor  shall  immediately  notify 
the  council  making  such  levy  and  council  shall  within  ten  days 
after  the  receipt  of  such  notification  revLe  its  levy  so  as  to  bring 
it  within  the  law. 

( 1 )  Old  section. —  See  old  §  was  held  to  be  directory  in  Gates  v. 
2691  R.  S.,  repealed.  Beckwith,  2  W.  L.  M.,  589. 

(2)  Provision  directory. —  The  (3)  Annexed  territory. —  Levy 
requirement  of  certification  at  or  be-  of  tax  on  annexed  territory  after 
fore  the  time   fixed   in   the  statute  annexation.     See  State  v.  Craig,  21 

C.  C.  13. 

FORM      OF     ORDINANCE     LEVYING     TAXES     FOR     MUNICIPAL 

PURPOSES. 

Ordinance  No 


To  Levy  Taxes  for  Municipal  Purposes  for  the  Year  19. .  .. 

Be  it  ordained  by  the  council  of  the  city  [or  village]   of 

State  of  Ohio: 

Sec.  1.     That  there  be  levied  and  collected   for  municipal  purposes  for 
the   year    19...    on    each    dollar    of    valuation   of   the   real    and   personal 

property   within   the    city    [or  village]    of ,    returned   on    the 

grand  duplicate  and  subject  to  taxation mills    (not  exceeding  ten 

mills). 

See.  2.     That    the    levy    above    authorized    for    municipal    purposes    be 
and  the  same  is  hereby  apportioned  as  follows: 

MILLS 

fleneral   purposes    '.,..... 

Police    Department ,  . 

Fire   Department 


166  the  ohio   municipal  code.  [Code  §  41 


Health  Department    

Parks     

Street  Improvements  and   repairs 

Lighting  the  corporation    , 

Etc.,  Etc. 

(These  items  may  be  further  extended  to  embrace  all  objects  not 
desired  to  be  included  under  "  general  purposes." ) 

Total   (not  exceeding  10  mills) 

Sec.  3.     That    there    be    levied    and    collected    on    each    dollar    of    the 
property  aforesaid  for  the  year  19.  .  .  the  following  additional  sums: 

MILLS 

For  schools  and  school  houses 

Free  public  libraries  and  library  buildings 

University  and  observatory 

Hospitals     

Sinking  fund  and  interest 

Total . 

Grand  Total 

(The  additional  levies  are  for  those  purposes  not  included  within  the  ten 
mill  limit  of  §  33  of  the  Code.  They  may  be  used  where  applicable,  and 
itemized  to  suit  the  requirements  of  the  municipality. ) 

Sec.  4.     That  the  clerk  is  hereby  directed  to  certify  the  above  levies  to 

the  auditor  of county,  to  be  placed  on  the  tax  list  and 

collected  according  to  law. 

Sec.  5.     This    ordinance    shall    take   effect    and   be   in   force   from   and 
after  the  earliest  period  allowed  by  law. 

Passed ,  19 

Attest : 


Clerk.  

President  of  Council. 

Sec.  41.  [Corporation  taxes;  how  collected;  duty  of  corpora- 
tion treasurer.]1  The  taxes  of  the  corporation  shall  be  collected 
by  the  county  treasurer  and  paid  into  the  treasury  of  the  corpo- 
ration in  the  same  manner  and  under  the  same  laws,  rules  and 
regulations  as  are  or  may  be  prescribed  for  the  collection  and 
paying  over  of  state  and  county  taxes ;  and  the  corporation  treas- 
urer shall  keep  a  separate  account  with  each  fund  for  which 
taxes  are  assessed,  which  account  shall  be  at  all  times  open  to 
public  inspection.  Unless  expressly  otherwise  provided  by  law, 
all  money  collected  or  received  on  behalf  of  the  corporation  shall 
be  promptly  deposited  in  the  corporation  treasury  in  the  appro- 
priate fund,  and  the  treasurer  shall  thereupon  give  notice  oil 


Code  §§  42,  43]   taxation,     appropriations.  167 

such  deposit  to  the  auditor  or  clerk;  and  unless  otherwise  pro- 
vided by  law  no  money  shall  be  drawn  from  the  treasury  ex- 
cept upon  the  warrant  of  the  auditor  pursuant  to  an  appropria- 
tion by  council.2 

(1)  Old  sections. —  See  old  §§  vided. —  If  no  special  mode  of  col- 
2690,   2692   K.   S.,  repealed.  lecting   a    tax   is     provided,    where 

(2)  In  villages  there  are  no  power  is  given  to  collect,  council 
auditors,  but  the  clerk  of  the  village  would  have  authority  to  prescribe 
is  the  proper  person  upon  whose  the  mode  by  ordinance.  Cincinnati 
warrant  money  is  to  be  drawn  from  v.  Gwynne,  10  O.  192;  Cincinnati 
the  treasury.  See  §  201  of  the  Code.  v.  Bank,  14  0.  605. 

Collection  where  no  mode  pro= 


Sec.  42.  [Fiscal  year.]1  In  all  municipal  corporations  the 
fiscal  year  of  each  office,  board  and  department  shall  terminate 
on  the  thirty-first  day  of  December,  in  each  year,  and  all  ac- 
counts shall  be  closed  on  that  day,  and  all  annual  reports  re- 
quired by  law  shall  be  made  for  the  year  terminating  on  that 
day.2 

( 1 )  Old  section. —  Compare  old  sactions  up  to  and  including  the 
§  1545  R.  S.,  repealed.  31st  day  of  December  of  each  year. 

(2)  The  fiscal  year  under  the  Opinion  of  attorney-general  on  file 
new  Code  expires  with  the  31st  day  in  his  office,  dated  Dec.  3,  1902.  See 
of  December  and  the  annual  state-  "order  of  procedure"  under  §  35, 
ments   required   in  various  sections  >  supra. 

of  the  Code  to  be  made,  include  tran- 

Sec.  43.  [Council  to  make  appropriations  at  beginning1  of  each 
fiscal  half  year;  unexpended  appropriations  or  balances  shall  re- 
vert to  fund  from  which  taken;  transfer  of  funds;  contingent 
fund.]1  In  all  municipal  corporations  council  shall  make,  at 
the  beginning  of  each  fiscal  half  year,  appropriations  2  for  each 
of  the  several  objects  for  which  the  corporation  has  to  provide,3 
out  of  the  moneys  known  to  be  in  the  treasury,  or  estimated  to 
come  into  it  during  the  six  months  next  ensuing  from  the  collec- 
tion of  taxes  and  all  other  sources  of  revenue.  All  expenditures 
within  the  following  six  months  shall  be  made  with  and  within 


168  THE    OHIO     MUNICIPAL    CODE.  [Code    §    4^5 

said  appropriations  and  balances  thereof.  All  unexpended  ap- 
propriations or  balances  of  appropriations  remaining  over  at  the 
end  of  the  year  and  all  balances  remaining  over  at  any  time  after 
a  fixed  charge  shall  have  been  terminated  by  reason  of  the  object 
of  the  appropriation  having  been  satisfied  or  abandoned,  shall 
revert  to  the  funds  from  which  they  were  taken  and  they  shall 
then  be  subject  to  such  other  authorized  uses  as  council  may  de- 
termine ;  provided,  that  councils  of  cities  or  villages  may  at  any 
time,  by  the  votes  of  three-fourths  of  all  the  members  elected 
thereto,  and  the  approval  of  the  mayor/  transfer  all  or  a  portion 
of  one  fund  or  a  balance  remaining  therein,  to  the  credit  of  one 
or  more  funds,  but  there  shall  be  no  such  transfer  except  among 
funds  raised  by  taxation  upon  all  the  real  and  personal  property 
in  the  corporation,  and  no  such  transfer  shall  be  made  until  the 
object  of  the  fund  from  which  the  transfer  is  to  be  effected  has 
been  accomplished  or  abandoned.5  In  making  the  semi-annua] 
appropriations  and  apportionments  herein  required  council  shall 
have  authority  to  deduct  and  set  apart  out  of  any  moneys  not 
otherwise  appropriated  such  sums  as  it  shall  deem  proper  as  a 
contingent  fund  to  provide  for  any  deficiency  in  any  of  the  de- 
tailed appropriations  so  to  be  made,  which  deficiency  may  law- 
fully and  by  any  unforseen  emergency  6  happen,  and  such  con- 
tingent fund  or  any  part  thereof  may  be  expended  for  any  such 
emergency  only  by  an  ordinance  passed  by  two-thirds  of  all  the 
members  elected  to  council  and  approved  by  the  mayor,  and  any 
balance  remaining  in  such  contingent  fund  at  the  end  of  the 
fiscal  year  shall  thereupon  become  a  part  of  the  general  fund  to 
be  again  appropriated  as  other  moneys  belonging  to  the  corpora- 
tion ;  provided,  that  the  provisions  of  this  section  shall  in  no 
way  interfere  with  the  provisions  of  an  act  entitled  "  An  act  to 
further  provide  for  the  transfer  of  public  funds,"  passed  May  6, 
1902.     (95  O.  L.,  371.) 


Code    §    43]  TAXATION.       APPROPRIATIONS. 


169 


(1)  Old  sections.— Compare  old 
§  2690/i  R.  S.,  a  special  act,  re- 
pealed. 

(2)  Detailed  and  specific  ap- 
propriations.—  Former  statutes  for 
certain  cities  required  the  appropri- 
ations to  be  "detailed  and  specific." 
Under  such  provisions  it  was  held 
that  the  expenditures  must  be  classi- 
fied and  appropriation  in  a  lump 
sum  would  not  be  compliance  with 
the  statute.  Ampt  v.  Cincinnati,  5 
N.  P.  98. 

Former  section  1693  R.  S.  also 
required  that  every  ordinance  appro- 
priating money  should  contain  an 
explicit  statement  of  the  uses  and 
purposes  for  which  the  appropria- 
tion was  made.  (See  Stem  v.  Cin- 
cinnati, 6  N.  P.  15,  19;  Knauss  v. 
Columbus,  13  Dec.  200.) 

The  present  section  omits  the 
words  "detailed  and  specific,"  and 
section  122  of  the  Code,  which  su- 
persedes §  1693  R.  S.,  also  omits 
the  requirement  of  an  explicit  state- 
ment in  appropriating  ordinances, 
but  that  such  ordinances  should  spe- 
cifically state  the  several  purposes 
for  which  money  is  appropriated  is 
shown  by  the  requirement  as  to 
contingent  fund  ordinances  in  § 
43  above,  that  they  are  to  supply  de- 
ficiencies in  any  of  the  "detailed  ap- 
propriations so  to  be  made." 

(3)  Purposes  of  appropriation. 
— Entertainment  of  public  guests  is 
not  a  legal  object  for  the  appro- 
priation by  a  city  of  its  funds 
raised  by  taxation.  Stem  v.  Cincin- 
nati, 6  N.  P.  15;  Moore  v.  Hoffman, 
2  C.   S.  C.  R.  453. 

(4)  Passing  over  mayor's  veto. 
— Under    former    statute   2690ft   R. 


S.  an  appropriation  from  the  contin- 
gent fund,  not  approved  by  the 
mayor,  could  be  passed  over  his 
veto;  but  under  the  present  section 
the  mayor's  approval  would  be  es- 
sential, and  passing  an  appropria- 
tion over  his  veto  would  not  be  an 
equivalent.  See  State  v.  Brown,  8 
C.  C.  103. 

(5)  Transfer  of  funds. —  Trans- 
fer from  one  department  to  another 
department  of  the  same  fund  was 
held  to  be  forbidden  under  former 
statutes.  Stem  v.  Cincinnati,  6  N. 
P.    15. 

(6)  Unforeseen  emergency. — A 
contemplated  improvement  deferred 
for  want  of  funds  is  not  an  unfore- 
seen emergency  within  a  provision 
such  as  this.  Ampt  v.  Cincinnati,  1 
N.  P.  379. 

To  make  a  case  within  the  mean- 
ing of  a  provision  such  as  this, 
something  unforeseen  shall  happen 
affecting  the  object  for  which  the 
specific  appropriation  is  made  and 
which,  by  requiring  an  unexpected 
expenditure  of  money  appropriated 
to  that  particular  object, has  caused 
or  will  cause  a  deficiency  in  the  ap- 
propriation. Ampt  v.  Cincinnati,  1 
X.  P.  379.  Whether  the  determina- 
tion of  council  in  the  ordinance  that 
an  emergency  did  exist  is  final,  see 
Ampt  v.  Cincinnati,  1  N.  P.  379, 
382. 

Increase  in  legitimate  municipal 
expenditures  required  by  reason  of, 
a  Grand  Army  encampment,  which- 
event  was  not  decided  upon  until 
after  the  estimates  for  the  year  were 
made  up,  was  held  to  be  payable  out 
of  the  contingent  fund.  Stem  v. 
Cincinnati,  6  N.  P.   15. 


170  the  ohio  municipal  code.  [Code  §  43 

"  An  act  to  further  provide  for  the  transfer  of  public  funds." 

[Sec.  1.]  [Transfer  of  public  funds.]  That  the  county  com- 
missioners of  any  county,  infirmary  directors  of  any  county  or 
municipality,  the  township  trustees  of  any  township,  the  board 
of  education  of  any  school  district,  the  council  or  other  board  or 
body  having  the  legislative  power  of  any  municipality  and  the 
trustees  of  any  hamlet,  shall  have  power  to  transfer  the  public 
funds  under  their  respective  supervision,  from  one  fund  to 
another,  in  the  manner  hereinafter  provided,  which  shall  be  an 
additional  procedure  to  all  other  now  provided  by  law. 

[Sec.  2.]  [Petition  to  be  filed  in  Common  Pleas  Court;  notice 
of  filing,  etc.;  hearing  and  decree  of  court;  costs;  appeal.]  When- 
ever a  majority  of  officers  or  of  the  members  of  any  board  afore- 
said named  desire  to  transfer  any  fund  to  any  other  fund,  or  to 
a  new  fund  to  be  created,  under  their  respective  supervision,  and 
a  resolution  of  such  officers  or  board  shall  have  been  duly  passed 
declaring  the  necessity  therefor,  such  officers  or  board  shall  file 
a  petition  in  the  Court  of  Common  Pleas  of  the  county  in  which 
such  funds  are  held,  in  which  shall  be  set  forth  the  name  and 
amount  of  the  fund,  and  the  fund  or  funds  to  which  it  is  desired 
to  be  transferred,  a  copy  of  said  resolution  and  a  full  statement 
of  the  proceedings  pertaining  to  its  passage,  and  the  reason  or 
necessity  for  such  transfer,  and  upon  such  petition  being  filed, 
the  petitioner  shall  cause  notice  of  the  filing  of  said  petition,  the 
objects  and  prayer  thereof,  and  of  the  time  when  said  petition 
will  be  for  hearing,  to  be  given  by  one  publication  in  two  news- 
papers, of  opposite  politics,  having  a  general  circulation  in  the 
territory  to  be  effected  by  such  transfer  of  funds,  preference  to 
be  given  to  such  newspapers  as  are  published  within  such  terri- 
tory, but  if  there  shall  be  no  such  newspapers  published  or  hav- 
ing a  general  circulation  within  such  territory,  then  such  notice 
shall  be  given  by  posting  the  same  in  ten  of  the  most  conspicuous 
places  within  such  territory  for  such  period  of  four  weeks: 
said  petition  may  be  heard  at  the  time  stated  in  said  notice,  or 
as  soon  thereafter  as  it  shall  be  convenient  for  the  court  to  hear 
the  same,  but  said  cause  shall  be  heard,  upon  request  of  the 
petitioners,  in  preference  to  all  other  cases  on  the  docket.  Any 
person  or  persons  objecting  to  the  prayer  of  such  petition,  shall 
file  their  objections  in  said  cause  on  or  before  such  time  fixed  in 
said  notice  for  hearing,  and  they  shall  be  entitled  to  be  heard. 
If,  upon  the  hearing,  the  court  shall  find  that  the  notice  has  been 
given,  as  herein  required,  that  the  petition  states  sufficient  facts, 
and  that  there  are  good  reasons,  or  that  a  necessity  exists  for 


Code  §§  43a,  44]  taxation,     balances  in  funds.  171 

such  transfer,  and  no  injury  will  result  by  granting  the  prayer 
of  such  petition,  it  shall  grant  the  prayer  of  the  petition  and 
order  the  petitioners  to  make  such  transfer,  and  a  copy  of  the 
findings,  orders  and  judgments  of  the  court  shall  be  certified  by 
the  clerk  and  spread  upon  the  records  of  the  officers  or  board 
who  are  petitioners,  and  upon  the  same  being  done  such  petition- 
ers may  make  the  transfer  of  funds  as  directed  therein.  And 
such  petitioners  shall  pay  all  of  the  costs  of  such  proceedings, 
except  when  objections  are  filed,  the  court  may  order  such  per- 
sons objecting  to  pay  all  or  such  portion  thereof  as  may  be  just 
and  equitable.  Said  petitioners  or  any  person  or  any  number 
of  persons  filing  objections  to  such  petition,  may  appeal  said 
cause  to  the  Circuit  Court  of  said  county,  and  the  proceedings 
for  such  appeal  shall  be  the  same  as  provided  for  appeals  from 
the  Common  Pleas  to  the  Circuit  Court  in  other  cases,  and  when 
said  cause  shall  be  appealed,  the  Circuit  Court  shall  have  the 
same  power  and  make  the  same  orders  and  all  proceedings  there- 
in shall  be  had,  as  herein  provided  for  in  the  Court  of  Common 
Pleas,  except  upon  such  appeal,  the  question  of  costs  shall  be 
within  the  discretion  of  said  court ;  and  such  cause  may  be  re- 
viewed on  error  in  the  Supreme  Court.     [95  v.  371.] 

Sec.  43a.  [Unexpended  balances.]  Any  unexpended  balance 
remaining  in  a  fund  which  was  created  by  an  issue  of  bonds 
the  whole  or  any  part  of  which  issue  is  still  outstanding  unpaid 
and  unprovided  for,  shall,  when  such  balance  is  no  longer 
needed  for  the  purpose  for  which  said  fund  was  created,  be 
transferred  to  the  trustees  of  the  sinking  fund  to  be  applied 
in  the  payment  of  the  bonds.  All  acts  or  parts  of  acts  incon- 
sistent with  this  provision  be  and  the  same  are  hereby  repealed 
in  so  far  as  such  inconsistency  exists.  [1904,  April  27,  97 
v.  520.] 

Sec.  44.  [Monthly  statement  of  balances  in  all  funds  and  ac- 
counts.]1 The  auditor  or  clerk,  and  the  treasurer  in  all  muni- 
cipal corporations  shall  make  up  monthly,  a  statement  of  the 
balances  in  all  funds  and  accounts  in  their  offices,  as  the  same 
»ixist  at  the  close  of  business  on  the  last  day  in  the  month,  and 
such  officers  shall  forthwith  compare  such  statements,  correct 
any  errors  in  them,  and  at  once  forward  a  copy  of  the  same  to 
the  mayor,  who  shall  keep  them  for  public  inspection,2 


172  the  ohio   municipal   code.  [Code  §  45 

(1)  Old  Section. —  Compare  old  lish  the  statements  mentioned  in 
§  1765a  R.  S.  repealed.  this   section.     Opinion   of   attorney- 

(2)  Section  124  of  the  Code  should  general  on  file  in  his  office,  dated 
not  be  construed  as  making  it  com-  Dec.  3,  1902. 

pulsory  on  city  authorities  to  pub- 

Sec.  45.  [Restrictions  as  to  contracts,  appropriations  and  ex- 
penditures; proviso.]1  'No  contract,  agreement  or  other  obliga- 
tion involving  the  expenditure  of  money  shall  be  entered  into, 
nor  shall  any  ordinance,  resolution  or  order  for  the  expenditure 
of  money,  be  passed  by  the  council  or  by  any  board  or  officer  of 
a  municipal  corporation,  unless  the  auditor  of  the  corporation, 
and  if  there  is  no  auditor,  the  clerk  thereof,  shall  first  certify 
to  council  that  the  money  required  for  the  contract,  agreement 
or  other  obligation,  or  to  pay  the  appropriation  or  expenditure, 
is  in  the  treasury  to  the  credit  of  the  fund  from  which  it  is  to  be 
drawn,  and  not  appropriated  for  any  other  purpose,  which  cer- 
tificate shall  be  filed  and  immediately  recorded ;  2  and  the  sum 
so  certified  shall  not  thereafter  be  considered  unappropriated 
until  the  corporation  is  discharged  from  the  contract,  agreement 
or  obligation,  or  so  long  as  the  ordinance,  resolution  or  order  is 
in  force ;  and  all  contracts,  agreements  or  other  obligations,  and 
all  ordinances,  resolutions  and  orders  entered  into  or  passed,  con- 
trary to  the  provisions  of  this  section  shall  be  void,  and  no  party 
whatever  shall  have  any  claim  or  demand  against  the  corporation 
thereunder ;  nor  shall  the  council,  or  a  board,  officer,  or  commis- 
sioner of  any  municipal  corporation,  have  any  power  to  waive 
or  qualify  the  limits  fixed  by  such  ordinance,  resolution  or  order, 
or  fasten  upon  the  corporation  any  liability  whatever  for  any 
excess  of  such  limits,  or  release  any  party  from  an  exact  com- 
pliance with  his  contract  under  such  ordinance,  resolution  or 
order ;  nor  shall  any  member  of  the  council,  board,  officer  or  com- 
missioner of  the  corporation,  have  any  interest  in  the  expendi- 
ture of  money  on  the  part  of  the  corporation  other  than  his  fixed 
compensation  ;3  and  a  violation  of  any  provision  of  this  section 
shall  disqualify  the  party  violating  it  from  holding  any  office  of 


Code    §    45]  TAXATION.       RESTRICTIONS    AS    TO    CONTRACTS.    173 

trust  or  profit  in  the  corporation,  and  render  him  liable  to  the 
corporation  for  all  sums  of  money  or  other  thing  he  may  receive 
contrary  to  the  provisions  of  this  section,  and  if  in  office  he  shall 
he  dismissed  therefrom ;  provided,  however,  that  the  council  of 
any  city  may  authorize  and  the  council  of  any  village  may  make 
(subject  to  the  provisions  of  sections  2491  and  3551  of  the 
Ke vised  Statutes  of  Ohio)4  a  contract  with  any  person,  firm  or 
company  for  lighting  the  streets,  alleys,  lands,  lanes,  squares  and 
public  places  in  the  municipal  corporation,  or  for  furnishing 
water  to  such  corporation,  or  for  the  collection  and  disposal  of 
garbage  in  said  corporation,  or  for  the  leasing  of  the  electric 
light  plant  and  equipment,  or  the  waterworks  plant,  or  both,  of 
any  person,  firm  or  company  therein  situated,  for  a  period  not 
exceeding  ten  years,  and  the  requirement  of  a  certificate  that  the 
necessary  money  is  in  the  treasury  shall  not  apply  to  such  con- 
tract ;  provided  further,  that  such  requirement  shall  not  apply  to 
street  improvement  contracts  extending  for  one  year  or  more, 
nor  to  contracts  made  by  the  board  of  health  of  any  municipal- 
ity, nor  to  contracts  made  by  any  village  for  the  employment  of 
legal  counsel. 

( 1 )    Old      sections. —  These      re       the  money  has  since  come  into  the 
strictions   substantially   incorporate      treasury  and  has  been  *  set  apart  is 


old   sections   2699   and   2702   R.   S. 


not  sufficient.     State  v.  Hoffman,  25 
O.  S.  328. 


repealed;    the    former    applying   to  The  fact  that  funds  are  actually 

Cincinnati  only,  and  known  as  the  in  the  treasury,  does  not  dispense 

"Worthington  Law,"  the  latter  ap-  with  certificate.     State  v.  Bair    50 

*            "    .               ..          ;  B.  11:   Findlay  v.  Pendleton,  62  O. 

plying,   with   certain  exceptions,   to  ^    qq 

all  municipalities  and  known  as  the  As   to   the   exact  time  when   the 

"Burns  Law."  certificate  is  required  in  case  of  sev- 

General  exceptions  to  the  require-  "al  steP8  **  a  Proceeding  ending  in 

„                    r  .  the  expenditure  of  money*,  see  Bra- 

ment   that  money   for    a   municipal  man  y   Elyria>  26  C.  C.  731;  5  C.  C. 

.contract  be  in  the  treasury  were  for-  (N.  S.)    387    (aff'd  73  O.  S.  346); 

merly  contained  in  old   §§   2264  R.  Pullen  v.  Smith,  26  C.  C.  549;  5  C. 

8.  j    2273    R.    S.;    2275    R.    S.    and  ?    (N    S.)    1;  Ryan  v   Hoffman    26 

'                ,  O.  S.   109;  Tvler  v.  Columbus,  6  C. 

3471-4    and    3471-4a    R.    S.,    all    of  c   224. 

which  are  repealed  by  the  Code.  To  what  expenditures   appli- 

(2)    Must  be  funds  at  time  of  cable  —  Generally.  —  These   restric- 

ordinance.—  The  money  must  be  in  «ons  were  held,  under  former  stat- 

the  treasury  and  so  certified  at  the  °*f «  not  *>  aPP!J  to  contracts  pay- 
J  able  out  of  a  fund  not  raised  by  tax- 
time  the  ordinance  is  passed,  before  ation      Kerr  v    Belief ontaine,  59  O. 
the  ordinance  can  take  effect.    That  S.    446.    464;    Comstock   v.   Nelson- 


174 


THE  OHIO  MUNICIPAL  CODE. 


[Code  §  45 


ville,  61  O.  S.  288,  294;  State  ex 
rel,  v.  Gibson,  1  N.  P.  (N.  S.)  565 
(aff'd,  49  B.  87). 

Thus  the  former  sections  were 
held  not  to  apply  to  purchases  by 
gas  trustees  for  the  erection  of  gas 
works,  for  they  were  not  payable  out 
of  a  fund  raised  by  taxation.  Kerr 
v.  Bellefontaine,  59  O.  8.  446,  464. 

The  power  of  the  various  boards 
of  a  city  to  make  contracts  is  lim- 
ited by  such  a  provision.  Thus  a 
contract  by  waterworks  board  un- 
der §  2415  is  so  restricted,  Newton 
v.  Toledo,  18  C.  C.  756. 

Resolution  of  council  accepting  a 
gift  of  a  public  library  and  agree- 
ing to  maintain  the  same  at  an  ex- 
pense of  one  thousand  dollars  per 
year,  is  not  within  the  inhibition  of 
this  section.     Smith  v.  Evans,  74  O. 

S.  .     But  see  Pullen  v.  Smith, 

26  C.  C.  549;  5  C.  C.  (N.  S.)   1. 

Employment  contracts. — Em- 
ployment of  a  street  superintendent 
at  a  weekly  salary  is  not  authorized 
unless  at  the  time  of  employment 
money  to  pay  for  such  employment 
was  in  the  treasury  and  so  certified. 
State  ex  rel,  v.  Hoffman,  25  O.  S. 
328. 

So  employment  of  a  superintend- 
ent over  the  construction  of  a  town 
hall.  Drott  v.  Riverside,  4  C.  C. 
312. 

Employment  of  an  attorney  for 
Sunday  law  prosecutions,  without 
certificate  of  money  in  treasury,  was 
held  void.  That  the  amount  of  pay- 
ment in  such  case  could  not  be  ascer- 
tained in  advance  was  held  to  make 
no  exception,  for  a  maximum  could 
have  been  fixed ;  nor  was  it  material 
that  the  services  were  to  preserve 
order  and  enforce  an  ordinance. 
Bond  v.  Madisonville,  2  C.  C.  449. 

Employment  of  attorney  by  a 
board,  without  certificate  of  auditor 
that  money  is  in  treasury  to  pay 
for  services,  is  void,  though  the 
board  was  empowered  to  sue  and  be 
sued.  Though  the  money  was  in 
treasury  and  a  financial  statement 
was  made  to  council  at  each  meet- 
ing, the  certificate  could  not  be  dis- 
pensed with.  Findlay  v.  Pendleton, 
62  O.  S.  80. 

Expenses  incurred  in  employing  a 
village  solicitor  were  held  to  be 
within  the  restriction  of  such  a 
provision,  where  there  was  no  pro- 
viso    excepting     such     employment. 


Easton  v.  Hyde  Park,  6  N.  P.  257. 
Under  the  present  Code,  however, 
the  employment  of  counsel  by  vil- 
lages is  specially  excepted  from  the 
restrictions. 

Condemnations. — Ordinances  to 
appropriate  property  for  public  pur- 
poses, as  for  a  public  park,  are  valid 
without  the  certificate  of  money  in 
the  treasury  to  pay  for  the  appro- 
priation. This  is  put  on  the  ground 
that  the  ordinance  to  appropriate  is 
not  one  to  expend  money,  the 
amount  is  not  ascertainable  and 
bonds  are  issued  to  pay  the  award. 
Put-in-Bay  v.  Webb,  18  C.  C.  780. 
But  see  Ryan  v.  Hoffman,  26  O.  S. 
109,  123. 

So  condemnation  of  property  for 
opening  a  street  is  not  within  such 
provisions.  Klopfer  v.  Sunderland, 
I  Dayton  143;  see  also  Tyler  v.  Co- 
lumbus, 6  C.  C.  224 ;  but  see  Rhoades 
v.  Toledo,  6  C.  C.  9,  contra. 

Contracts  for  street  improve** 
ments. — The  restriction  requiring 
certificate  of  auditor  of  money  in 
the  treasury  does  not  apply  to  con- 
tracts for  street  improvements  when 
bonds  have  been  authorized  by  the 
municipality  to  be  issued  to  pay  the 
entire  estimated  cost  and  expense 
of  the  improvement.  Emmert  v. 
Elyria,  74  O.  S.  (51  B.  189). 

Nor  is  the  certificate  required  for 
so  much  of  the  cost  as  is  to  be  paid 
for  by  assessments  on  abutting  prop- 
erty. Comstock  v.  Nelson ville,  61 
O.  S.  288.  And  this  is  true,  even 
though  some  of  the  assessments  may 
prove  uncollectible  by  reason  of  de- 
ficient value  of  lots  or  otherwise.  lb. 

For  construction  of  provisions  of 
former  statutes,  see  Wood  v.  Pleas- 
ant Ridge,  12  C.  C.  177,  182;  Irwin 
v.  Greenville,  1  Dayton  140;  Chit- 
tenden v.  Columbus,  14  Dec.  333;  1 
N.  P.  (N.  S.)  420;  Cincinnati  v. 
McErlane,  3  B.  843;  Kirchner  v. 
Cincinnati,  14  B.  48;  Ryan  v.  Cin- 
cinnati, 2  B.  251;  Mills  v.  Norwood, 
26  B.  348;  McGrew  v.  Elmwood 
Place,  17  C.  C.  676;  Comstock  v. 
Nelsonville,  61  O.  S.  288.  See  also 
Trowbridge  v.  Hudson,  24  C.  C.  76; 
3  C.  C.  (N.  S.)  644  (as  to  contracts 
relating  to  sidewalk  improvements 
under  former  statutes ) . 

Meaning  of  the  provision  except- 
ing "street  improvement  contracts 
extending  for  one  year  or  more,"  see 
Emmert  v.  Elyria,"  supra. 


Code  §  45]      TAXATION.      RESTRICTIONS  AS  TO  CONTRACTS. 


175 


Running  expenses. — The  former 
statutes  covering  the  subject  mat- 
ter of  the  present  section  were  held 
to  be  restrictions  on  the  power  of  a 
municipal  corporation  to  contract, 
and  to  refer  to  all  contracts  made  by 
a  city.  Thus  the  restrictions  would 
apply  to  all  contracts  for  lighting 
the  streets  of  the  city,  where  the 
words  did  not  except  such  contract. 
Ampt  v.  Cincinnati,  2  N.  P.  332, 
339;  Cope  v.  Wellsville,  25  B.  250. 

The  ordinary  expenses  of  running 
the  municipality  were  held  to  be 
included  in  such  provisions  and  they 
were  held  not  to  be  limited  to  im- 
provement contracts.  Easton  v. 
Hyde  Park,  6  N.  P.  257;  State  v. 
Philbrick,    13   Dec.    158. 

But  see  Lima  Gas  Light  Co.  v. 
Lima,  4  C.  C.  22,  28,  where  it  was 
held  that  the  former  sections  ap- 
plied only  to  a  certain  class  of  con- 
tracts, those  affecting  improvements 
made  by  the  city,  and  had  no  ap- 
plication so  far  as  contracts  af- 
fecting expenses  in  running  the  city 
were  concerned;  and  lighting  con- 
tracts were  therefore  held  not  with- 
in the  restrictions,  even  though  not 
expressly  excepted.  See  also  Cope  v. 
Wellsville,  25  B.  250. 

Exceptions  implied  by  other 
statutes. — Implied  exceptions  to 
the  restrictions  of  such  a  section  as 
this  may  be  caused  by  the  provisions 
of  other  statutes.  Thus  the  provis- 
ion requiring  an  armory  to  be  fur- 
nished by  a  city  (R.  S.  §  3085)  was 
held  to  make  the  city  liable  for  rent, 
though  no  certificate  of  money  in 
the  treasury  had  been  made.  Wilson 
v.  Cincinnati,  19  B.  10;  see  also 
State  ex  rel.  v.  Massillon,  24  C.  C. 
249;  2  C.  C.   (N.  S.)    167. 

And  the  restrictions  were  held  not 
applicable  to  a  contract  for  a  trunk 
sewer  under  a  former  trunk  sewer 
act  (84  0.  L.  75),  for  otherwise  the 


law  could  not  be  carried  out,  since 
the  act  requires  contracting  at  once 
and  collection  of  fund  by  subsequent 
levy.  Cincinnati  v.  Honnigfort,  32 
B.  32.  And  see  Cincinnati  v.  Holmes, 
56  O.  S.  104. 

They  were  held  not  applicable  in 
their  entirety  to  a  city's  water- 
works; for  otherwise  an  accident  to 
the  machinery  might  leave  the  city 
helpless  for  months.  Cincinnati 
ex  rel.  v.  Cincinnati,  11  C.  C.  309, 
317. 

Where  gas  trustees  are  given 
power  to  construct  and  control  gas 
plants,  things  necessary  to  accom- 
plish the  purpose  of  carrying  out 
the  power,  employing  service  neces- 
sary, preserving  the  property  from 
destruction  and  impairment  to  a  de- 
gree not  amounting  to  rebuilding 
or  extension,  are  incidental  and  go 
with  the  power  expressly  given  to 
construct  and  control.  Current  ex- 
penses incurred  in  thus  operating 
and  controlling  the  property  do  not 
require  certificates  that  money  is  in 
the  treasury,  for  otherwise  it  would 
be  almost  impossible  to  operate  the 
institution  as  required  by  the  special 
statute  giving  the  power.  Findlay 
v.  Parker,  17  C.  C.  294,  300  (aff'd 
63   O.   S.   565). 

The  act  (90  O.  L.  34)  authorizing 
certain  cities  to  make  dredging  con- 
tracts was  held  to  make  an  excep- 
tion to  the  restrictions  of  §  2702  R. 
S.  Sprankle  v.  Cleveland,  12  C.  D. 
644. 

Express  provisions  in  other  stat- 
utes, excepting  contracts  made  un- 
der them,  from  the  restrictions  of  a 
statute  such  as  §  45,  must  be  read 
as  an  exception  to  this  section.  Mt. 
Vernon  v.  State,  71  O.  S.  428. 

Exceptions  implied  from  necessity, 
where  public  health  endangered,  see 
Columbus  v.  Bohl,  1  N.  P.  (N.  S.) 
469;    13  Dec.  569. 


176 


THE  OHIO  MUNICIPAL  CODE. 


[Code  §45 


Contracts  running  beyond 
year. — Street  improvement  con- 
tracts extending  for  one  year  or 
more  are  made  special  exceptions 
by  the  Code. 

A  contract  by  which  a  city  agrees 
to  pay  a  water  company  hydrant 
rentals  for  water  for  fire  purposes 
for  thirty  years  would  not  be  void 
on  the  ground  that  there  was  not  a 
certificate  of  money  in  the  treasury 
sufficient  to  satisfy  the  amount  fall- 
ing due  for  the  full  period  of  thirty 
years.  Defiance  v.  Council,  23  C.  U. 
96  (reversed  on  other  grounds,  68 
O.  S.  520).  See  also  Defiance  Wa- 
ter Co.  v.  Defiance,  12  O.  F.  D.  299 
(reversed  on  other  grounds,  14  O. 
F.  D.  127). 

As  to  contracts  running  over  a 
year,  under  the  former  sections  on 
this  subject  relating  to  Columbus 
(§§1545-150,  2699-1  R.  B.  re- 
pealed), see  Fergus  v.  Columbus,  6 

a.  p.  82. 

Effect  of  ordinance  or  contract 
made  without  certificate. — A  con- 
tract without  the  certificate  re- 
quired imposes  mo  liability  on  the 
municipality  to  pay.  It  is  not 
estopped  to  set  up  the  defense  of  the 
want  of  a  certificate.  Lancaster  v. 
Miller,  58  O.  8.  558. 

The  municipality  is  not  liable 
though  the  contractor  has  fully  per- 
formed his  contract.  He  must  as- 
certain at  his  peril  whether  the  cer- 
tificate has  been  filed  and  recorded 
or  not.  Comstock  v.  Nelson ville,  61 
O.  B.  288. 

Where  city  employed  superintend- 
ent over  town  hall  construction, 
when  the  auditor  had  not  certified 
that  the  required  money  to  pay  for 
such  employment  was  in  the  treas- 
ury the  city  was  held  not  liable  to 
pay  for  his  services,  although  they 
were  valuable.  Drott  v.  Riverside, 
4  C.  C.  312. 

Under  the  former  statutes,  where 
the  requirement  was  that  the  money 
should  be  "specially  set  apart"  it 
was  held  that  a  contract  before  the 
money  was  set  apart  was  invalid, 
even  though  the  money  was  in  the 
treasury  at  the  time  of  the  con- 
tract, though  afterwards  expended 
on  other  contracts.  Lowry  v.  Cin- 
cinnati, 1  B.  102. 


A  provision  such  as  contained  in 
this  section  is  designed  only  to  re- 
strain municipal  extravagance.  It 
does  not  make  work,  done  without 
the  preliminaries  here  required,  il- 
legal so  as  to  impose  a  liability 
which  would  not  otherwise  have 
been  imposed.  Elster  v:  Springfield, 
49  O.  S.  82. 

Thus,  where  a  sewer  is  construct- 
ed by  the  city  without  money  in  the 
treasury  for  that  purpose  and  the 
sewer  does  injury  by  carrying  off 
percolating  waters,  which  had  fed  a 
spring,  the  city  is  not  liable.    lb. 

Pleading  and    practice. — It  is 

sufficient  if  the  petition  avers  that 
the  contract  was  duly  made.  It  is 
not  necessary  to  aver  that  the  cer- 
tificate of  money  in  the  treasury 
was  made.  Neubauer  v.  Bd.  Educa- 
tion, 6  N.  P.  530. 

That  a  city's  partly  executed  con- 
tract is  void  because  there  had  been 
no  certificate  of  funds  in  the  treas- 
ury, is  not  necessarily  grounds  for 
injunction  to  restrain  further  exe- 
cution of  it.  Ampt  v.  Cincinnati, 
34  B.  Ill,  112. 

When  the  municipality  refuses 
payment  to  a  contractor  on  the 
ground  that  the  fund  provided  by 
legislative  authority  has  already 
been  expended,  the  corporation  must 
show  clearly  that  at  the  time  of 
making  the  contract  and  entering 
upon  its  execution  it  with  others 
exceeded  the  amount  the  fund  pro- 
vided. Otherwise  this  defense  can 
not  prevail.  Cincinnati  v.  Cameron, 
33  O.  S.  336. 

(3)  Officer  interested.  —  Com- 
pare Sections  6969  R.  S.  and  6976 
R.  S.,  making  it  a  crime  for  any 
person  holding  any  office  of  trust  or 
profit  in  this  state,  or  any  agent, - 
servant  or  employee  of  any  officer 
or  of  a  board  of  officers  to  be  in- 
terested in  any  contract  for  the  pur- 
chase of  property  or  supplies  for 
the  use  of  any  county,  township, 
school  district,  municipal  corpora- 
tion or  public  institution  or  any 
municipal  officer  to  be  interested  in 
any  contract  or  work  with  or  for 
the  corporation. 

Under  such  sections  it  is  held 
unnecessary  to  a  conviction  that  the 
officer  make  a  profit  on  the  contract, 


Code  §§  45a,  45b.]  taxation,  restrictions  as  to  contracts.  177 


but  sufficiently  if  he  is  personally  in- 
terested in  the  proceeds  of  the  sale; 
nor  is  it  any  defense  that  when  said 
contract  was  made  money  therefor 
was  not  certified  to  be  in  the  treas- 
ury. Doll  v.  State,  45  O.  S.  445; 
and  the  contract  so  made  is  void. 
Dalzell,  etc.,  Co.  v.  Findlay,  5  C.  C. 
435  (aff'd,  27  B.  128)  ;  Bellaire  Co. 
v.  Findlay,  et  ah,  5  C.  C.  418;  Find- 
lay  v.  Parker,  17  C.  C.  294  (aff'd, 
63  O.  S.  565)  ;  Marsh  v.  Hartwell,  2 
N.  P.  389.  See  also  State  v.  Funk, 
16  C.  C.  155. 

Compare  also  §  3974  R.  S.  forbid- 
ding any  member  of  a  school  board 
to  be  interested  in  a  contract  with 
such  board,  under  which  it  was  held 
that  a  contract  between  the  board 
and  a  firm  in^ which  a  member  of  the 
board  is  a  partner  is  void,  and  any 
taxpayer  may  enjoin  the  same. 
Grant  v.  Brouse,  1  N.  P.  145. 

As  to  punishment  of  persons  giv- 
ing bribes  to  officers  or  public 
agents,  see  §  6900  R.  S.  An  ac- 
countant employed  by  a  city  board 
of  revision  held  an  officer  within 
the  meaning  of  §  6900.  Barker  v. 
State,  69  O.  S.  68. 

A  contract  of  employment  between 
a  member  of  council  and  a  railway 
company  by  which  the  member  of 
council  is  to  devote  his  time  to  the 


general  management  of  the  com- 
pany's business  in  that  city  includ- 
ing the  procurement  of  the  rights  of 
way  over  the  streets,  which  are  to 
be  granted  by  the  council  of  which 
the  councilman  is  a  member,  was 
held  void.  Railroad  Company  v. 
Morris,  10  C.  C.  502. 

In  construing  §  856  R.  S.,  forbid- 
ding county  commissioners  to  have 
an  interest  in  a  contract  on  behalf 
of  the  county,  it  was  held  that  the 
penalty  could  not  be  enforced  in  a 
case  where  the  contractor,  subse- 
quent to  the  letting  of  the  contract, 
entered  into  an  agreement  to  pur- 
chase material  therefor  from  a  cor- 
poration in  which  the  commissioner 
was  a  stockholder,  and  such  subse- 
quent agreement  had  no  influence  in 
procuring  the  contract.  State  ex  rel. 
v.  Pinney,  47  B.  820. 

Member  of  board  of  health  is  an 
officer  of  municipality,  and  ineli- 
gible to  office  of  district  physician 
during  term  or  for  one  year  there- 
after. State  ex  rel.  v.  Wichgar,  27 
C.  C.  743. 

As  to  validity  of  contracts  made 
by  public  officials  extending  beyond 
the  expiration  of  their  terms,  see 
State  ex  rel.  v.  Lewis,  12  Dec.  46. 

(4)  For  these  sections,  see  Part 
II. 


Sec.  45a.  [When  money  may  be  deemed  in  treasury  and 
in  appropriate  fund.]  Money  to  be  derived  from  lawfully 
authorized  bonds  or  notes  sold  and  in  process  of  delivery  shall 
for  the  purpose  set  forth  in  section  45  of  this  act  be  deemed 
in  the  treasury  and  in  the  appropriate  fund.  [1904,  March  21, 
97  v.  44.] 

Sec.  45b.  [Shall  not  adopt  plans  or  specifications  for  public 
improvement  which  requires  exclusive  use  of  patented  articles, 
etc.]  No  municipal  corporation  shall  adopt  plans  or  specifi- 
cations for  any  public  improvement  required  by  law  to  be 
made  by  contract  let  after  competitive  bidding  which  require 
the  exclusive  use  of  any  patented  article  or  process  or  any 
article  or  process  protected  by  any  trade-mark  or  any  article 
or  process  wholly  controlled  by  any  person,  firm  or  corporation 
or  combination  thereof.     [1906,  April  16,  98  v.  204.] 


178  the  ohio  municipal  code.       [Code  §§  46,  47,  48 

(b)  Tax  Commission. 
Sec.  46.  [Board  of  tax  commissioners  and  board  of  sinking 
fund  trustees;  appointment,  qualifications,  term,  etc.]1  In  each 
city  there  shall  be  a  board  of  tax  commissioners,  which  shall 
also  constitute  the  board  of  sinking  fund  trustees,  as  provided  in 
§  108  of  this  act,  to  consist  of  four  citizens  of  such  city  who 
shall  be  electors  of  said  city,  well  known  for  their  intelligence 
and  integrity,  to  be  appointed  by  the  mayor,  one  for  four  years, 
one  for  three  years,  one  for  two  years,  and  one  for  one  year,  and 
their  successors  shall  be  appointed  for  four  years  from  the  expi- 
ration of  their  respective  terms.  Such  appointments  shall  be  so 
distributed  that  not  more  than  two  members  of  said  board  shall 
belong  to  the  same  political  party.  In  case  of  any  vacancy  by 
death,  resignation,  removal  from  the  city  or  otherwise,  of  either 
of  such  commissioners,  the  same  shall  be  filled  by  appointment 
by  the  mayor  for  the  unexpired  portion  of  such  term. 

(1)   Old  sections.— Tax  eommis-  1545-149  R.   S.)  j    Dayton    (§   2690Z 

sioners  under  special  acts  formerly  R.  S. )  ;  and  in  many  other  cities  by 

existed    in   Cleveland    (§1545-72   R.  virtue  of  Sections  2690a  R.  S.     All 

S. )  ;  Cincinnati  where  Board  of  Su-  these   sections   are  repealed  by  the 

pervisors    acted    in    such    capacity  new  Code. 
(§    2690m    R.    S.)  ;     Columbus     (§ 

Sec.  47.  [No  compensation.]  The  members  of  said  board  of 
tax  commissioners  shall  not  receive  any  compensation  for  their 
services. 

Sec.  48.  [Oath;  organization;  record  of  proceedings;  clerk.] 
The  members  of  said  board  of  tax  commissioners  shall  each  take 
an  oath  to  support  the  Constitution  of  the  United  States  and  of 
the  State  of  Ohio,  and  to  faithfully  and  honestly  perform  their 
duties  as  such  tax  commissioners.  Said  board  shall  organize 
by  appointing  one  of  its  members  president,  another  vice-presi- 
dent; a  majority  of  the  members  thereof  shall  constitute  a 
quorum  for  the  transaction  of  business.     The  board  shall  keep 


Code  §§  49,  50]  taxation,     tax  commission.  179 

a  full  record  of  all  its  proceedings,  and  the  city  auditor  shall  be 
clerk  of  said  board,  and  shall  receive  no  additional  salary  or 
compensation  for  services  as  clerk  of  said  board,  and  shall  enter 
in  a  book  to  be  provided  by  the  city  for  that  purpose  a  full  and 
detailed  statement  of  all  its  proceedings  which  shall  be  signed 
by  the  president  or  vice-president  and  said  clerk. 

Sec.  49.  [Powers  and  duties  of  board  of  tax  commissioners.]1 
The  board  of  tax  commissioners,  upon  receipt  of  the  levies  made 
by  the  council  as  provided  by  law,  shall  consider  the  same,  and 
within  ten  days  after  such  receipt  shall  return  the  same  to  the 
council  with  its  approval  or  rejection,  in  case  of  rejection  giving 
its  reasons  therefor.  It  may  approve  or  reject  any  part  or  parts 
thereof,  and  the  parts  rejected  by  said  board  shall  not  become 
valid  levies  unless  the  council  of  such  municipality  shall  there 
after  by  a  three-fourths  vote  of  all  members  elected  thereto  adopt 
such  levy  or  part  thereof  so  rejected  by  said  commission.  If 
the  board  of  tax  commissioners  approve  said  levies,  or  if  it  neg- 
lect to  return  the  same  with  its  approval  or  rejection  within  ten 
days  as  aforesaid,  the  same  shall  be  valid  and  legal;  provided, 
that  in  no  case  shall  the  board  of  tax  commissioners  have  author- 
ity to  increase  said  levy. 

(1)    Compare  with   old   §    2690#  R.  S.  repealed. 


Fifth.     Assessments. 

(a)  Assessments  in  General. 
Sec.  50.     [Assessments  which  may  be  made  special;  method  of 

assessment.]1  The  council  of  any  municipal  corporation  may 
assess 2  upon  the  abutting,  adjacent  and  contiguous  or  other 
specially  benefited  lots  or  lands  3  in  the  corporation,  any  part 4 
of  the  entire  cost  of  and  expense  5  connected  with  the  improve- 
ment of  any  street,  alley,  dock,  wharf,  pier,  public  road,  or  place 
by  grading,  draining,  curbing,  paving,  repaving,  repairing,  con- 
structing sidewalks,  piers,  wharves,  docks,  retaining  walls, 
sewers,  drains,  water  courses,  water  mains  or  laying  of  water 


180 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  50 


pipe  and  any  part  of  the  cost  of  lighting,  sprinkling,  sweeping, 
cleaning  or  planting  shade  trees  upon  the  same  6  by  either  of 
the  following  methods : 

First.  By  a  percentage  of  the  tax  value  of  the  property  as- 
sessed.7 

Second.  In  proportion  to  the  benefits  which  may  result  from 
the  improvement,8  or 

Third.  By  the  foot  frontage  of  the  property  bounding  and 
abutting  upon  the  improvement.9     [1904,  April  19,  97  v.  98.] 


(1)  Old  section  2264  R.  S.  re- 
pealed and  see  old  sections  2264a, 
22646,  2266,  2267,  and  2269  R.   S. 

repealed. 

(2)  Nature  of  power  of  assess- 
ment.—  Assessments  for  street  pur- 
poses are  those  special  and  local 
impositions  upon  property  in  the 
immediate  vicinity  of  an  improved 
street,  which  are  necessary  for  the 
improvement  and  levied  with  refer- 
ence to  the  special  benefit  which 
such  property  derives  from  the  ex- 
penditure of  the  money.  Raymond 
v.  Cleveland,  42  O.  S.  522. 

A  reassessment  is  a  reapportion- 
ment of  .the  cost  and  expense  of 
such  improvement  and  the  impo- 
sition may  be  either  upon  the 
same  lands  or  part  of  the  same 
lands  and  it  may  include  other 
lands.     76. 

The  principle  underlying  special 
assessments  is  that  the  property 
upon  which  they  are  imposed  is  pe- 
culiarly benefited  and  therefore  the 
owners  do  not  in  fact  pay  anything 
in  excess  of  what  they  receive  by 
reason  of  the  improvement.  Walsh  v. 
Barron,  61  O.  S.  15;  Donohue  v. 
Brotherton,  7  N.  P.  367. 

From  the  very  nature  of  assess- 
ments, they  cannot  in  any  case 
exceed  the  benefits,  for  otherwise 
they  would  be  a  taking  of  private 


property N  for  public  use  without 
compensation  in  violation  of  §  19, 
Art.  1,  of  the  Constitution  of  Ohio. 
Chamberlain  v.  Cleveland,  34  O. 
S.  551;  Railway  Co.  v.  Cincinnati, 
62  O.  S.  465;  Dayton  v.  Bauman, 
66  O.  S.  379,  and  see  notes  to  §  53 
of  the  Code. 

Distinguished  from  taxation. — 
The  power  of  assessment  is  not 
limited  by  the  constitutional  pro- 
vision requiring  taxation  by  a  uni- 
form rule.  The  power  of  assess- 
ment differs  from  the  power  of 
taxation.  Ridenour  v.  Saffin,  1 
H.  464;  Hill  v.  Higdon,  5  O.  S. 
243;  Reeves  v.  Treas.  Wood  Co.,  8 
O.  S.  333;  Sessions  v.  Crunkilton, 
20  O.  S.  349. 

Though  in  a  general  sense  a  tax 
is  an  assessment,  and  an  assess- 
ment is  a  tax,  there  is  a  well  rec- 
ognized distinction  between  them. 
Lima  v.  Cemetery  Assn.,  42  O.  S. 
128;  and  exemption  from  taxation 
would  not  exempt  from  assessment 
for    local    improvement.        lb. 

Assessments  in  proportion  to  ben- 
efits are  not  a  taking  of  private 
property  for  public  use,  but  rath- 
er a  species  of  taxation.  Scovill 
v.  Cleveland,    1   O.   S.   126. 

The  fact  that  lands  not  included 
in  a  taxing  district  are  more  ben- 
efited than  some  lands  in  the  dm- 


Code    §    50]  *    ASSESSMENTS.       IN    GENERAL. 


181 


trict  was  held  not  to  render  an 
assessment  invalid.  Weston  v. 
Commissioners,  6  C.  C.  641 ;  see  also 
Raymond  v.  Cleveland,  42  O.  S. 
522. 

Validity  in  general. —  Legisla- 
tion authorizing  municipalities  to 
levy  assessments  for  street  improve- 
ments, upon  property  specially  ben- 
efited, is  constitutional.  Hill  v. 
Higdon,  5  O.  S.  243;  Reeves  v. 
Treas^Wood  Co.,  8  O.  S.  333;  Ses- 
sions v.  Crunkilton,  20  O.  S.  349. 
In  Dayton  v.  Bauman,  66  O.  S. 
379,  where  power  to  assess  abut- 
ting property  to  pay  costs  of  con- 
demnation was  denied,  the  power 
to  assess  for  surface  improvements, 
was  reaffirmed. 

Such  legislation  is  not  uncon- 
stitutional even  though  it  does  not 
adequately  restrict  the  power  of 
assessment  so  as  to  prevent  abuse. 
The  duty  imposed  by  §  6,  Art.  13  of 
the  Constitution  is  in  this  regard 
directory  and  not  mandatory.  Par- 
sons v.  Columbus.  50  O.  S.  460. 
As  to  what  would  be  sufficient  re- 
striction see,  Maloy  v.  Marietta,  11 
O.   S.   636. 

Assessments  may  be  authorized 
to  be  made  -in  proportion  to  the 
feet  front  or  upon  the  value  of  the 
lands  as  assessed  for  taxation,  leav- 
ing to  the  municipality  the  choice 
•  of  mode.  Ernst  v.  Kunkle,  5  O. 
S.  520;  Hill  v.  Higdon,  5  O.  S. 
243;  R.  R.  Co.  v.  Connelly,  10  O. 
S.  159,  163. 

Uniformity. —  The  rule  of  appor- 
tionment in  assessment,  whether  by 
the  front  foot  or  a  percentage  upon 
the  assessed  valuation  must  be  uni- 
form, affecting  all  property  alike. 
One  rule  cannot  be  applied  to  one 
owner  and  a  different  one  to  an- 
other owner.  R.  R.  Co.  v.  Con- 
nelly, 10  O.  S.  159,  165;  Jaeger  v. 
Burr,  36  O.  S.  164;  Upington  v. 
Oviatt,  24  O.  S.  232,  246. 


An  assessment  is  not  uniform 
which  prescribes  an  equal  propor- 
tionate charge,  but  allows  a  credit 
to  the  owners  on  one  side,  who  had 
already  done  most  of  the  work  on 
that  side.  Jaeger  v.  Burr,  36  O.  S. 
164. 

But  the  requirement  of  uniform- 
ity is  not  violated  by  dividing  a 
street  of  varying  widths,  into  as 
many  sections  as  there  are  differ- 
ent widths  and  uniformly  assess- 
ing the  property  on  each  section. 
Findlay  v.  Frey,  51  O.  S.  390.  If 
a  street  of  varying  widths,  how- 
ever, is  not  divided  into  sections, 
the  assessment  does  not  have  to 
be  graduated  according  to  the  width, 
but  may  be  uniform  on  all  the 
street.  Smith  v.  Cincinnati,  6  N. 
P.  175.  The  same  is  true  of  as- 
sessment for  sidewalks  of  varying 
widths.  Ulm  v.  Cincinnati,  7  N.  P. 
278. 

Where  a  street  to  be  improved 
divides  two  municipalities,  each 
may  assess  the  abutting  property 
within  the  limits  and  a  difference 
in  amount  between  the  two  assess- 
ments will  not  invalidate.  Scully 
v.   Cincinnati,    1    C.   S.   C.   R.,    183. 

As  to  uniformity  where  property 
not  abutting,  but  near  to,  the  im- 
provement, is  included,  see  Allen  v. 
Cleveland,  1  Clev.  2.  Under  a  stat- 
ute allowing  assessment  of  prop- 
erty abutting  on  the  street  or  "  near 
thereto "  the  assessment  need  not 
be  made  upon  property  on  the  whole 
street,  but  only  on  that  part  of  the 
street  improved.  Scovill  v.  Cleve- 
land, 1  O.  S.  126. 

As  to  validity  of  assessment 
where  property  in  the  assessing 
district  is  divided  into  two  classes, 
viz.,  abutting  property,  and  con- 
tiguous property,  and  each  class 
assessed  by  a  different  rule,  see 
Akron  v.  Allen,  22  B.  260  (Supreme 
Court   not   reported). 


182 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    50 


Change  of  law  pending  pro- 
ceedings.— The  assessment  must  be 
governed  by  the  law  as  it  was  at 
the  time  of  the  improvement  ordi- 
nance, with  respect  to  the  manner 
of  assessment  and  the  rights  and  li- 
abilities of  the  owners  of  abutting 
property.  Cincinnati  v.  Season- 
good,  46  O.  S.  296;  Shehan  v.  Cin- 
cinnati, 25  B.  212  (aff'd,  27  B.  375). 

In  Toledo  v.  Marlow,  28  C.  C.  298 ; 
8  C.  C.  (N.  S.)  121,  it  was  held 
that  assessment  is  a  proceeding 
within  the  meaning  of  and  protected 
by  §  79  JR.  S.,  and  that  the  law  in 
force  at  the  commencement  of  the 
proceeding  must  govern,  and  the 
limit  of  assessment  provided  at  that 
time  prevails,  and  that  in  the  ab- 
sence of  a  petition  for  the  improve- 
ment, the  preliminary  resolution  is 
the  beginning  of  the  proceeding; 
see  also  Squier  v.  Cincinnati,  5  C. 
C.  400.  But  as  to  this  ground  see 
Union  Co.  v.  Greene,  40  O.  S.  318, 
disapproved,  however,  in  58  O.  S. 
225.  See  also  Ehni  v.  Columbus,  3 
C.  C.  494;  and  Crossley  v.  Findlay, 
10  C.  C.  286. 

But  it  was  held  that  the  board 
which  has  jurisdiction  to  pass  the 
resolution  to  improve,  has  juris- 
diction to'  complete  the  improve- 
ment, and  a  law  changing  the 
board,  passed  between  the  time  of 
the  resolution  to  improve,  and  the 
improvement  ordinance  does  not 
discontinue  the  power  of  the  board 
passing  the  resolution.  Cincinnati 
v.  Davis,  58  O.  S.  225,  236. 

And  when  an  improvement  is  pe- 
titioned for,  to  ascertain  the  effect 
of  the  petition,  reference  should  be 
had  to  the  law  in  force  at  the  time 
the  petition  was  presented.  Hays  v. 
Cincinnati,  62  O.  S.  116,  122. 

The  saving  clause  (§211)  of  the 
Code,  provides  that  no  rights  in  fa- 
vor of  or  against  any  municipal 
corporation  existing  prior  to  the 
act,  nor  any  action,  prosecution  or 
proceeding  shall  be  affected  by  the 
change  in  the  law.  A  section  sim- 
ilar  to  this   in  a   former   Code    (§ 


1539  R.  S.  repealed)  was  held  to  ap- 
ply to  assessments  and  make  the 
rights  of  parties  fixed  under  the  law 
in  force  at  time  of  improvement  or- 
dinance. Raymond  v.  Cleveland,  42 
O.  S.  522,  529;  Cincinnati  v.  Da- 
vis, 58  O.  S.  225.  And  the  law  in 
force  at  the  time  of  the  assessment 
would  govern  a  reassessment,  re- 
quired by  the  former  law  to  be  con- 
ducted in  the  same  manner  as  the 
original  assessment,  though  the  new 
law  was  passed  before  the  reassess- 
ment, lb.  After  a  contract  has 
been  made  for  an  improvement  and 
the  work  commenced,  the  right  to 
make  an  assessment  to  defray  the 
expenses  of  the  improvement,  will 
not  be  affected  by  repeal  of  the 
act  governing  such  matter,  where 
there  is  p  saving  clause  in  the  new 
law.  Corry  v.  Gaynor,  22  O.  S. 
584;  Hubbard  v.  Norton,  28  O.  S. 
116. 

Independently  of  any  saving 
clause,  it  was  held  that  a  new  law, 
tnough  limiting  the  amount  of  as- 
sessments, could  not  affect  con- 
tracts made  by  a  city  with  a  con- 
tractor to  deliver  to  him  the  as- 
sessments made,  for  such  new  law 
would  in  this  regard  impair  the 
obligation  of  contracts.  Goodale 
v.  Fennell,  27  O.   S.  426. 

Existing  assessment  ordinances 
remain  in  force  notwithstanding 
the  change  of  the  organization  of 
a  municipality,  if  not  inconsist- 
ent with  the  statute.  Neff  v. 
Bates,  25  O.  S.  169. 

Construction  of  assessment 
laws. —  Strict  construction  in  favor 
of  property  owner  is  required.  Cin- 
cinnati v.  Connor,  55  O.  S.  82,  91. 
See  also  §  2327  R.  S.,  re-enacted 
under  §  94  of  the  Code. 

The  general  policy  of  assessment 
laws  being  to  limit  the  amount  of 
assessments^      particular      statutes 


Code    §    50]  ASSESSMENTS.        IN    GENERAL. 


183 


will  be  construed  as  though  intend- 
ed to  adhere  to  that,  principle. 
Birdseye  v.  Clyde,  61  O.  S.  27. 

Conditions  precedent  to  assess- 
ment.—  The  determination  to  make 
the  improvement  and  to  charge  lot 
owners  must  precede  the  actual 
making  of  the  improvement.  Don- 
ohue  v.  Brotherton,  7  N.  P.  367; 
Folz  v.  Cincinnati,  2  Handy  261. 
But  the  assessment  may  be  made 
before  the  improvement.  Morgan  v. 
Cleveland,    1   Clev.  38. 

The  determination  of  council  as 
to  what  part  of  the  costs  shall  be 
assessed  upon  abutting  property  is 
a  condition  precedent  to  the  power 
to  assess.  Knorr  v.  Cincinnati,  21 
B.  297. 

Contesting  assessments  —  In- 
junction.—  An  assessment  standing 
on  the  tax  duplicate  will  be  pre- 
sumed to  be  valid,  and  one  seek- 
ing to  enjoin  its  collection  must 
show  its  invalidity  by  proper  aver- 
ment and  proof.  Bolton  v.  Cleve- 
land, 35  O.  S.  319. 

Perpetual  injunction  will  be 
granted  only  when  the  plaintiff 
shows  a  clear  right  thereto.  Spang- 
ler  v.  Cleveland,  43  O.  S.  526. 

Injunction  will  not  lie  by  abut- 
ting owner  prior  to  the  making  of 
the  contract  because  of  defects  in 
the  improvement.  Owner  can  en- 
join assessment  when  made.  Wood 
v.  Pleasant  Ridge,  12  C.  C.  177. 

Where  an  assessment  may  be  con- 
tested on  a  ground  common  to  all 
abutting  owners,  as  for  defects  in 
the  proceedings  and  also  on  a 
ground  peculiar  to  one  owner  alone, 
one  who  resorts  to  the  former 
ground  is  barred,  in  a  later  suit, 
from  contesting  assessment  on  the 
latter  ground.  Cincinnati  v.  Emer- 
son, 57  O.  S.  132. 

Petition     to     enjoin     must     show 


that  the  plaintiff  is  prejudiced  by 
the  irregularities  complained  of 
blavm  v.  Greene,  2  N.  P.  39.  Amend- 
ment of  petition,  see  Ulm  v.  Cin- 
cinnati, 7  N.  P.  278. 

Assessment  will  not  be  enjoined 
for  irregularities  in  proceedings 
which  are  curable,  where  the 
amount  properly  chargeable  is  the 
same  as  the  assessment.  Steese  v 
Oviatt,  24  O.  S.  248. 

Injunction  will  lie  where  the 
contractor  has  failed  to  perform  his 
contract.  Stone  v.  Viele,  38  0.  S. 
314. 

Where  sufficient  installments 
have  been  paid  to  equal  a  proper 
assessment  court  may  enjoin  collec- 
tion of  remaining  installments. 
Cincinnati  v.  James,  55  O.  S.  180. 

Two  or  more  persons  claiming  re- 
lief on  the  same  ground  may  join 
in  an  action  to  enjoin  the  assess- 
ment or  one  may  sue  in  behalf  of 
others.  Upington  v.  Oviatt,  24  O. 
S.  232.  When  cost  may  be  divided, 
see  Reed  v.  Cincinnati,  8  C.  C.  393^ 

Owners  may  enjoin  without  first 
applying  to  the  city  solicitor.  They 
do  not  sue  as  taxpayers.  Moore  v 
Cincinnati,  15  B.  196. 

Action  to  enjoin  collection  of  as- 
sessment on  ground  that  it  is  in  ex- 
cess of  benefits  is  barred  in  four 
years  after  making  of  improvements 
by  §  4982  R.  S.  Gault  v.  Columbus, 
1  N.  P..  (N.  S.)  201;  13  Dec.  575. 

As  to  rights  of  court  to  fix  amount 
properly  chargeable,  when  assess- 
ment is  enjoined  because  of  technical 
irregularity  or  defect,  see  §  2289  R 
S.  (page  267)  and  note  3  thereun- 
der. 

For  matters  relating  to  defenses 
to  suits  to  collect  assessments,  see 
notes  under  §  2286  R.  S.,  page  265. 

Estoppel  to  contest. —  Partici- 
pation in  causing  improvement  to  be 
made. —  One  who  participates  ac- 
tively in  causing  an  improvement  to 
be  made,  by  petitioning  for  the  im- 
provement, etc.,  is  thereafter  estop- 
ped to  deny  the  authority  of  the 
municipality  to  proceed  in  the  way 
sought  and  make  the  assessment. 
Tone  v.  Columbus,  39  O.  S.  281. 
But  he  will  not  be  estopped  from 
objecting  that  the  subsequent  pro- 
ceedings of  council  were  not  in  con- 
formity to  statute.     lb. 

The  property  owner  who  has  in- 


184 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    50 


duced  the  contractor  to  enter  into 
a  contract  and  do  the  work  by  as- 
surances that  he  would  be  paid,  is 
estopped  to  contest  the  validity  of 
assessments  on  the  ground  that  the 
contract  was  void  because  not 
founded  on  petition  with  the  req- 
uisite number  of  signers.  Corry 
v.  Gaynor,  22  O.  S.  584. 

One  who  participated  in  the  elec- 
tion of  commissioners  to  carry  out 
the  improvement  was  held  estop- 
ped to  the  same  extent  that  a  peti- 
tioner for  the  improvement  would 
be  estopped.  Columbus  v.  Slyh,  44 
O.   S.   484. 

The  property  owner  would  not  be 
estopped  from  contesting  the  va- 
lidity of  assessments  for  water 
works  because  he  had  voted  for 
the  water  works  trustees,  or  had 
paid  taxes,  a  part  of  which  were 
for  payment  of  interest  on  water 
works  bonds.  Willard  v.  Close,  25 
B.  391. 

Estoppel  from  executing  paper  set- 
ting forth  that  improvement  was 
legally  made,  to  enable  municipal- 
ity to  issue  its  bonds,  see  Shepard  v. 
Barron,  14  O.  F.  D.  417;  3  O.  L.  R. 
327. 

See  further,  as  to  estoppel  under 
various  former  laws,  Bloch  v.  God- 
frey, 26  C.  C.  781;  5  C.  C.  (N.  S.) 
318. 

Petitioning  for  improvement. 
— For  matters  relating  to  estoppel 
by  petitioning  for  improvement,  see 
notes  under  §§61  and  62  of  the 
Code. 

Permitting  improvement  with- 
out objection. — See,  on  question 
whether  there  can  be  estoppel  from 
mere  silence  with  knowledge  that 
improvement  is  being  made,  Co- 
lumbus v.  Agler,  44  O.  S.  485; 
Wright  v.  Thomas,  26  O.  S.  346; 
Andrews  v.  Settles,  16  C.  C.  638; 
but  see  Tone  v.  Columbus,  39  O.  S. 
281;  Quinlan  v.  Myers,  29  O.  S.  500; 
Danks  v.  Phares,  9  Kec.  554;  Birds- 
eye  v.  Clyde,  61  O.  S.  27,  37;  Taylor 
v.  Wapakoneta,  26  C.  C.  281. 


The  owner  of  land  not  having 
promoted  the  making  of  improve- 
ment is  not  estopped  to  contest  the 
unconstitutionality  of  the  assess- 
ment though  he  may  have  known 
of  the  improvement  and  of  the 
intention  to  make  the  assessment. 
Lewis  v.  Symmes,  61   O.  S.  471. 

A  property  owner  over  whose 
land  a  sewer  is  run  but  who  made 
no  objection  thereto  until  assess- 
ment, would  be  estopped  to  contest 
the  assessment  and  must  rely  on 
his  action  for  damages  for  the  ap- 
propriation. Wilson  v.  Cincinnati, 
5  N.  P.  68. 

The  property  owner  who  per- 
mitted a  street  to  be  improved 
Avithout  objection,  knowing  that 
his  predecessor  in  title  had  under- 
taken to  dedicate  it  but  that  the 
dedication  had  not  been  complete, 
would  be  estopped  to  resist  assess- 
ment on  the  ground  that  the  vil- 
lage had  no  title.  Neff  v.  Bates, 
25  O.   S.   169. 

Property  owner,  a  part  of  whose 
property  was  taken  by  the  city  to 
straighten  the  street,  but  who  dis- 
covered this  before  the  surface  im- 
provement was  begun  and  did  not 
object,  would  be  estopped  to  con- 
test the  assessment.  Cincinnati  v. 
Longworth,  4  Rec.  528. 

Owners  of  property,  a  part  of 
which  has  been  encroached  upon  by 
a  city  in  improving  a  street,  but 
who  made  no  objection  until  the 
work  was  done,  would  be  estopped 
to  contest  the  assessment  though 
they  might  receive  compensation 
for  the  land  taken.  Cincinnati  v. 
Goodman,  5  Rec.  153. 

Payment  of  part  of  assessment. 

—  Payment  of  part  of  assessment 
installments  will  not  estop  a  prop- 
erty owner  who  has  protested  that 


Code  §  50] 


ASSESSMENTS.        IN    GENERAL. 


185 


the  work  was  not  properly  done 
according  to  contract.  Hartzell  v. 
Alliance,  39  B.  232.  (Supr.  Court 
not  reported.)  See  also  Metcalf  v. 
Carter,  19  C.  C.  196;  Cincinnati  v. 
James,  55  0.  S.  180. 

Payment  of  part  of  assessments 
in  excess  of  benefits  will  not  estop 
property  owner  from  setting  up  de- 
fense that  benefits  are  exceeded, 
where  the  steps  in  the  improvement 
had  been  taken  without  his  knowl- 
edge and  he  did  not  participate  in 
any  way  in  carrying  forward  the 
improvement.  Yost  v.  Ry.  Co.,  24 
C.  C.  169;  2  C.  C.   (N.  S.)   519. 

Receiving  compensation. —  The 
fact  that  the  owner  of  property  re- 
ceived compensation  for  part  of  his 
land  taken  would  not  estop  him 
to  resist  the  assessment  for  the 
improvement  of  the  road  because  of 
its  unconstitutionality.  Lewis  v. 
Taylor,  18  C.  C.  443,  451. 

Unconstitutional  statutes. — The 
principles  of  estoppel  apply  as  well 
where  the  proceedings  of  a  corpo- 
ration are  questioned  on  the  ground 
of  unconstitutionality  of  a  statute 
under  which  they  are  had  as  where 
they  are  attacked  upon  other 
grounds,  unless  such  proceedings 
or  what  is  sought  to  be  accom- 
plished by  them  are  per  se  illegal 
or  malum  prohibitum.  Tone  v.  Co- 
lumbus, 39  O.  S.  281,  and  see  Lewis 
v.  Symmes,  61  O.  S.  471,  and  State 
v.  Mitchell,  31  O.  S.  592;  Wright 
v.  Thomas,  26  O.  S.  346;  Murdock 
v.  Cincinnati,  25  B.  26;  Mt.  Vernon 
v.  State,  71  O.  S.  428;  Shepard  v. 
Barron,   14  0.  F.  D.  417.  > 

Extent  of  estoppel. — A  person 
may  estop  himself  by  his  acts  in 
promoting  an  improvement,  to  deny 
the  legality  of  the  action  taken  by 
the  authorities  with  his  consent,  but 
he  would  not  ordinarily  be  estopped 
to  dispute  an  assessment  on  his 
property  beyond  the  limitation  fixed 
bv  law.  Birdseye  v.  Clyde,  61  O.  S. 
27. 


As  to  when  an  owner  has  estopped 
himself  from  disputing  an  assess- 
ment beyond  the  limitation,  by  ex- 
press agreement  in  a  petition  for 
the  improvement,  see  notes  under 
§  62  infra. 

What  persons  estopped. —  The 
acts  of  owners  who  procure  the  im- 
provement and  assessment  to  be 
made  will  not  operate  as  an  estop- 
pel of  their  intermediate  mortgagees. 
Donohue  v.  Brotherton,  7  N.  P.  367. 
But  where  the  grantor  is  estopped 
his  grantee  is  equally  estopped.  Co- 
lumbus v.  Slyh,  44  0.  S.  484;  and 
this  is  so  even  though  the  grantee 
bought  without  actual  notice  of  the 
lien  of  the  assessment.  Danks  v. 
Phares,  9  Jtec.  554. 

But  the  owner  will  not  be  estop- 
ped by  the  acts  of  his  agent,  signing 
for  the  property;  though  such  acts 
would  estop  the  agent  were  he  own- 
er. Andrew  v.  Auditor,  5  N.  P. 
123. 

A  purchaser  agreeing  in  a  deed  to 
pay  taxes  or  assessments  for  street 
improvements  on  the  property  is 
estopped  to  contest  the  validity  of 
assessment  which  had  been  levied 
on  the  property  at  the  time  of  the 
acceptance  of  deed.  Caldwell  v.  Co- 
lumbus, 37  B.  270;  Herman  v.  Co- 
lumbus, 15  Dec.  509;  3  N.  P.(N.  S.) 
216;  Waldschmidt  v.  Bowland,  27  C. 
C.  782;  6  C.  C.  (N.  S.)  99  (aff'd 
7  a  O.  S.  350).  But  see  Lewis  v. 
Taylor,  18  C.  C.  443  (aff'd  on  other 
grounds,  61  O.  S.  471).  But  where 
it  does  not  appear  that  the  amount 
of  the  assessment  was  taken  from 
the  purchase  price,  or  could  have 
been  known  at  time  deed  was  made, 
assessment  ordinance  not  yet  having 
been  passed,  a  mere  recital  that  pur- 
chaser will  pay  street  assessments, 
will  not  estop  him  from  contesting 
their  validity  when  levied.  Walsh 
v.  Sims,  65  O.  S.  211. 

Change  of  judicial  construc- 
tion.— Courts  will  not  enjoin  an 
assessment    on    the    ground    of    the 


186 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  50 


unconstitutionality  of  the  law  un- 
der which  it  was  levied,  if  the  im- 
provement is  made  and  the  assess- 
ment levied,  and  the  bonds  of  the 
municipality  issued,  even  though 
similar  legislation  has  been  held  by 
the  recent  decisions  of  the  court  to 
be  obnoxious  to  the  constitution,  if 
the  law  under  which  the  assessment 
was  levied  is  in  all  material  re- 
spects similar  to  a  law  which  has 
previously  been  held  constitutional. 
Shoemaker  v.  Cincinnati,  68  0.  S. 
603;  Gault  v.  Columbus,  13  Dec. 
575;  1  N.  P.  (N.  S.)  201;  Price  v. 
Toledo,  25  C.  C.  617;  4  C.  C.  (N. 
S.)    57. 

As  to  the  case  where  the  steps 
taken  were  in  compliance  with  that 
part  of  a  law  which  was  constitu- 
tional, but  a  requirement  of  a  law 
which  would  now  be  considered  un- 
constitutional, •  was  not  complied 
with,  see  Adkins  v.  Toledo,  27  C.  C. 
417;  6  C.  C.  (N.  S.)  433.  Pro- 
ceedings in  such  case  held  valid.  lb. 

Defect  in  work. — Assessment 
for  street  improvement  cannot  be 
enjoined  on  ground  of  defect  in  the 
work,  unless  fraud  is  shown.  Mc- 
Glynn  v.  Toledo,  22  C.  C.  34  (aff'ri 
67  O.  S.  498).  But  see  Taylor  v. 
Wapakoneta,  26  C.  C.  285.  Where 
injunction  is  sought  against  assess- 
ment on  the  ground  that  the  im- 
provement was  not  made  according 
to  specifications,  a  claim  made  after 
the  lapse  of  many  years,  must  be 
supported  by  the  clearest  proof. 
Gault  v.  Columbus,  13  Dec.  575;  1 
N.  P.  (N.  S.)  201.  But  burden  is 
on  defendant  to  show  that  the  de- 
fects appeared  at  such  a  time  as 
would  bar  plaintiff's  action.  Coit 
v.  Columbus,  13  Dec.  578;  1  N.  P. 
(N.  S.)   600. 

As  to  estoppel  to  contest  assess- 
ment on  this  ground,  see  Tone  v. 
Columbus,  39  O.  S.  281. 

(3)  What  property  may  be 
assessed — Generally. — Lands  ap- 
propriated and  used  by  a  railroad 
company  for  its  tracks  are  subject 
to  the  assessment  for  street  im- 
provement. Pv.  R.  Co.  v.  Connelly, 
10  O.  S.  159;  R.  R.  Co.  v.  Bel- 
mont Co.,  19  O.  S.  589. 
Page  186 


Street  railway  property  may  be 
assessed  to  pay  the  company's  share 
of  expense  of  paving  between  the 
tracks,  as  property  subject  to  as- 
sessment, though  not  abutting. 
Cleveland  v.  R.  R.  Co.,  1  Clev.  304. 

Property  used  as  a  wharf,  is  a 
lot  subject  to  assessment.  Boeres 
v.  Strader,  1  C.  S.  C.  R.  57. 

Land  cut  in  two  by  the  street  be- 
comes two  lots  for  assessment  pur- 
poses, and  each  part  must  bear  its 
own  charge  separately.  Spangler 
v.  Cleveland,  35  O.  S.  469;  Young- 
love  v.  Hackman,  43  O.  S.  69. 

Several  lots  owned  by  one  per- 
son and  abutting  on  the  improve- 
ment, must  be  separately  assessed; 
one  lot  cannot  be  liable  for  the 
aggregate  amount  assessed  on  all. 
Corry  v.  Folz,  29  O.  S.  320. 

Where  lands  are  platted  into  lots 
the  fact  that  the  lot  assessed  is 
shallower  than  the  rest  will  not  be 
considered.  Locke  v.  Cincinnati,  7 
N.  P.  318. 

The  area  of  a  street  put  through 
the  property  to  be  assessed,  since 
the  improvement,  is  deducted  from 
the  property.  Coates  v.  Norwood, 
16   C.   C.   196. 

Abutting  property  —  What  is. — 
Abutting  property  would  seem  to 
include  only  that  abutting  the  part 
of  a  street  improved  and  not  all 
property  abutting  on  the  entire 
street.  Creighton  v.  Scott,  14  O. 
S.  438;  Scovill  v.  Cleveland,  1  O. 
S.  126,  133;  R.  R.  Co.  v.  Connelly, 
10  O.  S.  159;  Smith  v.  Toledo,  24 
O.  S.  126,  130. 

Where  a  city  improved  only  nine- 
ty feet  of  a  ninety-one  foot  strip 
dedicated  to  it  for  street  purposes, 
leaving  a  strip  of  one  foot  on  one 
side,  the  owners  of  property  on 
that  side  are  nevertheless  liable  to 
be  assessed  as  owners  of  abutting 
property.      Richards    v.    Cincinnati, 


Code    §    50]  ASSESSMENTS.        IN    GENERAL. 


187 


31  0.  S.  506.  Such  an  unused  nar- 
row intervening  strip  would  ex- 
empt owners  on  that  side  from  as- 
sessment, only  in  case  it  deprives 
them  of  the  free  and  lawful  access 
to   their  property.     lb. 

An  owner  whose  lot  is  separated 
from  the  street  by  a  narrow  strip, 
although  he  is  licensed  by  the  own- 
er of  the  strip  to  use  it  for  build- 
ing purposes,  such  license,  however, 
not  having  become  irrevocable,  is 
not  an  abutting  owner.  Buse  v. 
Cincinnati,  28  B.  111. 

Where  the  improvement  is  con- 
fined to  one  side  of  a  street,  the  own- 
ers of  lots  abutting  the  other  side 
would  seem  to  be  owners  of  lots 
abutting  the  improvement.  See 
Cincinnati  v.  Batsche,  52  O.  S.  324; 
Dodsworth  v.  Cincinnati,  18  C.  C. 
288. 

Property  on  parts  of  the  street 
beyond  the  ends  of  the  improve- 
ment, is.  not  property  bounding  and 
abutting  on  the  improvement  for 
purposes  of  front  foot  assessment. 
Cincinnati  v.  Batsche,  52  0.  S.  324 ; 
Klein  v.  Cincinnati,  7  C.  C.  266 
(affirmed  without  report,  33  B.  83)  j 
Frey  v.  Findlay,  7   C.  C.   311,  319. 

Approval  of  subdivision  by  coun- 
cil under  §  2601  R.  S.  after  a  street 
assessment  has  been  made,  would 
not  relate  back  so  as  to  make  only 
the  abutting  lots  in  the  subdivision 
liable  for  assessments.  Cincinnati 
v.   Corry,  2  B.  337. 

Where  the  front  of  a  lot  abutting 
on  a  street  is  owned  by  one  per- 
son and  the  rear  is  owned  by  an- 
other, the  street  assessment  by  the 
front  foot  must  embrace  the  entire 
lot  as  numbered  and  recorded,  and 
the  assessment  must  be  appor- 
tioned between  th*»  owners  in  ac- 
cordance with  the  part  owned  by 
ear*.     Frey  v.  Findlay,  7  C.  C.  311, 


and    see     Coates    v.     Norwood,     16 
C.  C.  196. 

What  constitutes  abutting  prop- 
erty subject  to  assessment  is  to  be 
determined  by  the  situation  of  the 
property  at  the  time  of  the  im- 
provement ordinance  and  is  not  af- 
fected by  the  sale  of  a  strip  off  the 
front  after  such  ordinance  is  passed. 
Douglass  v.  Cincinnati,  29  O.  S. 
165.  And  see  Shiner  v.  Norwood, 
17  C.  C.  631. 

Contiguous  and  adjacent  prop- 
erty —  What  is. —  The  meaning  of 
the  words  "  adjacent  and  contigu- 
ous "  can  not  be  limited  by  any 
absolute  or  fixed  measurement  but 
must  be  determined  by  the  circum- 
stances of  each  case;  yet  for  all 
practical  purposes  they  may  be  said 
to  embrace  lots  and  lands  "  near  to  " 
the  improvement,  and  all  such  when 
specially  benefited  are  liable  to  be 
charged  with  the  costs  and  expense, 
when  contiguous  and  adjacent  lands 
are  included  in  the  assessment. 
Meissner  v.  Toledo,  31  O.  S.  387, 
395. 

Property  exempt. — School  lands 
are  not  liable  for  assessment  for 
street  or  sidewalk  improvements. 
Toledo  v.  Board  of  Education,  48  O. 
S.  83;  Board  of  Education  v.  To- 
ledo, 48  O.  S.  87.  And  a  statute 
making  school  property  subject  to 
assessment  was  held  unconstitu- 
tional. Board  of  Education  v. 
Auditor,  35  B.  294.  But  as  to  ex- 
emption of  school  property,  see 
Becker  \.  Columbus,  18  C.  C.  888; 
and  see  §  63  and  notes.  And  where 
the  school  board  held  under  a  lease 
by  which  it  agreed  to  pay  the  les- 
sor's burdens,  property  was  held 
liable  to  assessment.  Cincinnati  v. 
Board  of  Education,  2  B.  184. 

Institutions  of  public  charity  are 
not  exempt  from  assessment  for  im- 


188 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    50 


provenient.  Gilmour  v.  Pelton,  2  B. 
159. 

Property  of  a  cemetery  corpora- 
tion not  exempt  though  exempted 
by  law  from  taxation.  Lima  v. 
Cemetery  Association,  42  O.  S.   128. 

Where  property  is  dedicated  to 
municipality  on  condition  that  lots 
abutting  shall  be  exempt  from  im- 
provement assessments  without  the 
consent  of  the  majority  such  lots 
will  not  be  exempt,  for  the  condi- 
tion is  inoperative.  Richards  v. 
Cincinnati,  31  O.  S.  506. 

Property  in  territory  annexed. 

—  Property  annexed  to  a  municipal- 
ity after  the  improvement  was  or- 
dered but  before  it  was  completed, 
may  be  included  in  the  assessment. 
Upington  v.  Oviatt,  24  0.  S.  232, 
246. 

As  to  the  effect  upon  assessment 
of  a  condition  in  an  agreement  of 
annexation,  see  Cincinnati  v.  Cor- 
ry,  2  B.  337.  As  to  effect  on  assess- 
ment of  previous  improvement  of 
property  before  its  annexation  to 
city,  see  Cincinnati  v.  Monfort,  3 
B.  451. 

(4)  Improvements  by  general 
taxation. — Council  is  authorized  in 
§  50  of  the  Code,  above,  to  assess 
any  part  of  the  cost  of  improving 
streets,  etc.,  upon  abutting,  adjacent 
or  contiguous  property.  It  has  ~ot 
the  power  to  so  assess  all  such  cost, 
for  it  is  restrained  by  §  53  of  the 
Code  and  §  2284  R.  S.  (re-enacted 
in  §  94  of  the  Code)  and  by  the 
decisions  cited  thereunder.  But 
council  has  power  under  §  32  of 
the  Code  to  pay  the  entire 
cost  of  any  and  all  public  improve- 
ments by  general  taxation  upon  all 
the  real  and  personal  property  in 
the  corporation.  Similar  author- 
ity, though  not  so  broad  in  scope, 
was  given  by  §§  2262  and  2263  R. 
S.,    repealed. 


(5)  What   costs  and   expenses 

included. —  See  notes  to  §  2284 
R.  S.,  re-enacted  in  §  94  of  the 
Code. 

(6)  For  what  purposes  assess- 
ments may  be  levied. —  Assess- 
ments may  be  made  for  grading  and 
bowldering  a  street,  under  the  gen- 
eral power  to  improve  and  assess. 
Jessing  v.  Columbus,  1  C.  C.  90 
(aff'd  22  B.  453;  23  B.  3.) 

Assessments  may  be  made  and 
enforced  though  the  proceeds  go, 
not  to  pay  for  the  work  or  the 
bonds  issued  in  anticipation,  but  to 
reimburse  the  general  fund,  where 
the  municipality,  on  account  of  de- 
lays in  collection,  had  to  pay  the 
bonds  out  of  the  general  fund. 
Chamberlain  v.  Cleveland,  34  O.  S. 
551. 

An  assessment  may  be  made  for 
the  improvement  of  a  public  way, 
the  right  to  which  the  public  has 
acquired  by  prescription.  Duffy  v. 
Norwood,   3  N.  P.  325. 

The  assessment  can  be  levied  only 
for  the  costs  and  expenses  connect- 
ed with  the  surface  improvement  of 
the  street  or  public  place.  Costs 
and  expenses  connected  with  the  ap- 
propriation of  the  property  or  with 
the  satisfying  of  claims  for  dam- 
ages to  abutting  property,  cannot 
be  included  in  the  assessment.  See 
notes  to  §  2284  R.  8„  under  §  94 
of  the  Code,  infra. 

Improvement  without  title  in 
municipality. —  A  municipality  has 
no  power  to  improve  private  prop- 
erty for  street  purposes  without  the 
consent  of  the  owner  or  appropria- 
tion proceedings,  and  therefore  it 
cannot  assess  abutting  property  for 
such  unauthorized  improvement, 
even  though  the  owner  of  lands  as- 
sessed has  been  served  with  notice 
and     received      benefit.     Baker     v. 


Code    §    50]  ASSESSMENTS.        IN    GENERAL. 


189 


Norwood,  22  C.  C.  173;  see  Harbeck 
v.   Toledo,    11    0.   S.   219. 

Where  acceptance  by  ordinance 
was  required  before  dedication  could 
be  deemed  complete,  a  street 
claimed  by  the  municipality  but 
not  so  accepted  cannot  be  improved. 
and  assessments  for  its  improve- 
ment are  void.  Merchant  v.  Wat- 
erman, 3  W.  L.  M.  48. 

Where  the  public  street  has  been 
improved,  the  property  owners  can- 
not resist  assessment  on  the  grounc? 
that  the  site  of  the  street  was 
changed  from  a  canal  to  the  street 
without  a  new  condemnation,  or 
that  a  municipality  had  granted  to 
a  railroad  company  the  right  to 
use  the  street  for  its  tracks.  For 
any  injury  which  may  have  been 
sustained  by  such  changes  in  the 
use  of  the  land,  the  remedy  is  by  ac- 
tion for  damages.  Richards  v.  Cin- 
cinnati, 31  O.  S.  506. 

Where  a  city's  right  to  improve  a 
street  depends  upon  the  approval  of 
the  plan  of  improvement  by  the 
state  board  of  public  works,  prop- 
erty owners  cannot  resist  assess- 
nent  by  showing  that  certain  de- 
Tails  in  the  plan  had  not  been  duly 
approved.     76. 

Title  acquired  later.—  ine  tact 
that  a  municipality  has  not  ac- 
quired title  to  a  part  of  the  street 
on  which  improvement  is  made  un- 
til after  the  work  is  contracted  for 
will  not  make  the  assessment  void. 
Cincinnati    v.    Wilder,    9    Eec.    727. 

Though  the  city  has  not  title  to 
the  property  improved  at  the  time 
the  preliminary  steps  for  the  im- 
provement were  taken,  yet  if  before 
the  assessing  ordinance  is  passed 
the  property  is  duly  acquired,  the 
assessment  will  be  legal.  Cincin- 
nati v.  Honnigfort,  32  B.  32;  Wes- 
ton v.  Hamilton  County,  6  C.  C. 
641,    643     (affirmed   without  report. 


30  B.  291);  Toledo  v.  Barnes,  1 
N.    P.    185. 

Where  the  city  acquired  title  to 
the  property  improved  after  the 
work  was  begun  and  even  after  suit 
commenced  to  enjoin  the  assess- 
ment, the  assessment  was  held  valid. 
Wilson  v.  Cincinnati,  5  N.  P.  63. 

Condition      in      city's     title. — 

Where  the  municipality  has  ac- 
quired by  dedication  the  land  to  be 
be  improved  its  title  will  not  be  de- 
fective because  of  a  condition  in 
the-  dedication,  but  such  condition 
will  be  inoperative.  Richards  v. 
Cincinnati,  31  O.  S.  506. 

Where  a  city  condemned  turn- 
pike property  in  the  hands  of  coun- 
ty commissioners  as  an  abandoned 
road,  the  city's  title  will  not  be  de- 
fective because  of  conditions  of  the 
grant  to  the  turnpike  company,  of 
its  roadway.  Cincinnati  v.  Schoen- 
berger,   2  B.   128. 

Estoppel    to    deny    title. —  The 

land  owner  who  permits  the  street 
to  be  improved,  knowing  that  his 
predecessor  in  title  had  undertaken 
to  dedicate  it  would  be  estopped  to 
contest  the  assessment.  Neff  v. 
Bates,  25  O.  S.   169. 

A  property  owner  over  whose 
private  property,  not  yet  acquired 
by  a  city,  a  sewer  has  been  put,  but 
who  made  no  objection  thereto  at 
the  time  of  the  improvement,  can- 
not resist  the  assessment  for  the 
improvement.  His  only  remedy  1 1 
damages  for  the  appropriation. 
Wilson  v.  Cincinnati,  5  N.  P.  68. 

As  to  estoppel  to  resist  an  as- 
sessment for  improvement  includ- 
ing private  property  not  yet  proper- 
ly acquired  by  the  city  where  the 
lot  owner  permitted  the  improve- 
ment to  go  on  without  objection,  see 
Cincinnati  v.  Schoenberger,  2  B.  128; 
Cincinnati     v.    Longworth,    4     Rec. 


190 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    50 


528;  Cincinnati  v.  Goodman,  5  Rec. 
153. 

Street  between  two  municipal- 
ities.—  Where  the  street  divides  a 
city  from  a  village  each  municipal- 
ity may  improve  the  part  within 
its  boundaries  and  assess  abutting 
owners  and  the  difference  in  the 
amount  between  the  assessments 
will  not  make  them  void  for  want 
of  uniformity.  Scully  v.  Cincin- 
nati, 1  C.  S.  C.  R.  183. 

(7)  Percentage  of  tax  value. — 

Under  former  laws  the  statute  lim- 
iting the  amount  of  assessment  to 
a  proportion  of  the  tax  value  of 
abutting  property  was  held  to  mean 
the  value  fixed  by  the  decennial  ap- 
praisement in  force  when  the  im- 
provement ordinance  was  passed 
and  not  the  one  in  force  at  the  date 
of  the  assessment.  Crossley  v. 
Findlay,    10    C.    C.    286. 

(8)  Proportion    to     benefits. — 

Where  an  assessment  is  made  in 
proportion  to  benefits,  the  amount  of 
the  assessment  must  be  apportioned 
among  the  several  lots  and  parcels 
of  land  specially  benefited,  in  pro- 
portion to  the  special  benefit  which 
each  lot  or  parcel  bears  to  the 
whole  special  benefit  conferred  by 
the  improvement.  Chamberlain  v. 
Cleveland,  34  O.  S.  551. 

Such  assessment  is  of  course  lim- 
ited to  the  benefit  and  cannot  be  in 
excess  thereof.     lb. 

An  assessment  cannot  be  levied 
part  by  front  foot  and  part  by  bene- 
fits.    Dick  v.  Toledo,  11  C.  C.  349. 

As  to  validity  of  assessment  pur- 
porting to  be  according  to  benefits, 
but  actually  by  the  front  foot,  see 
Nulsen  v.  Cincinnati,  27  C.  C.  383; 
5  C.  C.  (N.  S.)  679. 

(9)  By   the   foot   frontage.— 

Constitutionality  of  assessments  by 
foot  frontage,  when  properly  made 
by  a  municipal  corporation  for 
street  improvements,  is  well  settled. 
Chamberlain  v.  Cleveland,  34  O.  S. 
551.  See  further,  Norwood  v.  Baker, 
172    U.     S.     269,     as     interpreted 


in  French  v.  Barber  Asphalt  Co., 
181  U.  S.  324;  Crawford  v.  Cincin- 
nati, 26  B.  215. 

Assessment  made  in  terms  by  the 
abutting  foot  is  valid,  if  it  does  not, 
in  fact,  exceed  the  special  benefits. 
Shoemaker  v.  Cincinnati,  68  0.  S. 
603. 

Where  the  assessment  is  by  the 
foot  frontage  of  abutting  property 
the  rate  of  the  assessment  must  be 
uniform  upon  all  the  property  as- 
sessed.  Jaeger  v.  Burr,  36  O.  S.  164. 

The  words  "  front  foot "  must  be 
interpreted  by  their  popular  mean- 
ing.    Betz  v.  Canton,  18  C.  C.  676. 

As  to  what  assessment  may  be 
deemed  to  be  a  front  foot  assess- 
ment, see  Cincinnati  v.  Batsche,  52 
0.  S.  324. 

It  was  held  that  where  the  as- 
sessment was  by  the  front  foot  the 
owners  were  liable  according  to  the 
feet  front  assessable  when  the 
work  was  ordered  and  the  assess- 
ment made,  and  not  according  to 
the  frontage  as  afterwards  reduced 
by  appropriation.  Spangler  v. 
Cleveland,  35  0.  S.  469. 

Lands  not  subdivided.  See  §  50a, 
p.  192. 

Real  frontage— Corner  lots,  etc. 
—  In  assessing  the  cost  of  a  street 
improvement  on  abutting  property 
by  the  front  foot  regard  must  be 
had  as  to  what  is  the  real  front  of 
the  property.  This  is  a  question  of 
fact  to  be  determined  by  the  man- 
ner in  which  it  was  laid  out  or  in 
which  it  has  been  built  upon  and 
used  and  occupied  by  the  owner. 
Haviland  v.  Columbus,  50  O.  S. 
471;  and  the  lengthwise  side  of  a 
corner  lot  abutting  on  street  im- 
proved cannot  be  assessed  for  the 
number  of  feet  on  that  side,  but  only 
for  the  number  of  feet  which  the 
lot  has  at  its  real  front.     lb. 

The  frontage  of  the  k)t  is  to  be 
determined  by  its  situation  when 
the  improvement  is  made  and  not 
by  its  situation  later,  after  changes, 
and  where  a  lot  owner  after  im- 
provement but  before  assessment 
builds  on  the  rear  of  a  corner  lot 
houses  fronting  on  the  street  im- 
proved, the  assessment  cannot  then 


Code    §    50]  ASSESSMENTS.       IN    GENERAL. 


191 


be  made  as  though  the  parts  of 
the  lot  built  upon  fronted  on  the 
side  street,  but  must  be  made  only 
on  the  real  or  narrow  frontage  of 
the  entire  lot  as  it  was  before  the 
houses  were  built.  Sandrock  v.  Co- 
lumbus, 51  0.  S.  317. 

The  frontage  of  a  corner  lot,  de- 
termined by  the  improvements  on 
it,  depends  on  the  permanent  and 
not  on  the  temporary  improvement. 
Burggreve  v.  Cincinnati,  1  N.  P. 
80;  a  side  gate  entrance  will  not 
constitute  the  side  of  the  lot  a 
front.     lb. 

A  tenement  building  on  the  rear 
of  a  corner  lot  would  sever  that 
part  and  make  it  a  new  lot  and  only 
the  rest  is  subject  to  the  corner 
lot  rule.  Wehage  v.  Cincinnati,  1 
N.  P.  82.  And  this  is  so  even 
though  the  building  cuts  across  and 
ignores  platted  lines  of  the  lot. 
Matthews  v.  Cincinnati,   16  B.  249. 

As  to  other  circumstances  that 
will  tend  to  show  that  the  length- 
wise side  of  a  corner  lot  is  also  a 
front  and  thus  assessable  as  such, 
see  Barney  v.  Dayton,  8  C.  C.  480; 
Schmidt  v.  Cincinnati,  1  N.  P.  48; 
Betz  v.  Canton,  32  B.  92;  Toledo  v. 
Sheill,  53  O.  S.  447;  Shattuck  v. 
Cincinnati,  1  N.  P.  394;  Duffy  v. 
Norwood,  12  C.  D.  675;  Meyer  v. 
Cincinnati,   1  N.  P.  81. 

But  mere  side  entrances  to  a 
main  building  or  entrances  to  a  sub- 
ordinate building,  such  as  a  stable, 
will  not  make  the  lengthwise  side 
of  the  lot  a  front,  Betz  v.  Canton, 
18  C.  C.  676;  nor  a  gate  on  the 
side  for  delivery  of  coal,  Manns 
v.  Cincinnati,  10  C.  C.  549;  (54 
O.  S.  257);  nor  the  fact  that 
rooms  in  the  rear  of  a  store  build- 
ing are  reached  by  entrance  on  the 
lengthwise  side  with  a  vacant  yard 
in  the  rear,  Metcalf  v.  Carter,  19 
C.  C.  196;  nor  the  fact  that  there 


is  an  entrance  on  the  side  street 
to  a  barn,  Daiber  v.  Toledo,  7 
N.  P.  389;  nor  the  fact  that  there 
are  doors  and  halls  for  access  from 
a  side  street  to  a  building  fronting 
toward  the  end,  though  such  en- 
trances are  frequently  used,  To- 
ledo v.  Sheill,  53  O.  S.  447;  nor 
that  there  are  outbuildings  which 
are  accessible  only  from  the  side 
street  but  whose  use  is  incidental  to 
the  occupation  of  the  building,  lb. 

The  frontage  of  a  vacant  lot  Is 
presumed  to  be  its  narrow  end, 
Toledo  v.  Sheill,  53  O.  S.  447. 

The  fact  that  a  building  was 
erected  on  the  rear  of  a  lot  since 
the  improvement  does  not  prevent 
the  corner  lot  rule  from  applying. 
Metcalf  v.  Carter,  19  C.  C.  196. 

Where  there  are  four  lots  owned 
by  one  person  fronting  on  one  street, 
with  a  side  street  along  the  side 
of  one  of  them  the  fact  that  the 
owner  has  put  up  a  house  on  two 
of  the  lots  farthest  from  the  side 
street  but  not  fronting  thereon,  will 
not  justify  assessment  for  entire 
amount  of  abutting  feet  on  side 
street.  Wolfe  v.  Avondale,  14  C. 
C.  375;  and  where  a  single  lot  has 
two  houses  on  it,  the  assessment 
for  the  lengthwise  side  can  be  only 
for  the  amount  of  frontage  of  the 
part  on  which  the  one  building 
nearest  the  side  street  is  placed. 
Bentley  v.  Toledo,  7  N.  P.  388. 

As  to  the  case  of  an  irregularly 
shaped  lot,  see  Reed  v.  Cincinnati, 
31   B.  279. 

As  to  assessment  of  triangular 
lot,  see  Thompkins  v.  Norwood,  1 
N.  P.  83;  Toledo  v.  Ainsworth,  7 
N.  P.  391.     Reed  v.  Cincinnati,   31 

B.  279;    Calkins   v.   Toledo,    12    C. 

C.  202. 

A  lot  fronting  on  three  streets 
having  a  front  at  each  end  and  on 
the  side  street  can  be  assessed  the 


192 


the  ohio  municipal  code.         [Code  §  50a 


foot  frontage  on  both  the  front 
streets  for  the  improvement  of  the 
side  street.  Cincinnati  v.  Manss,  54 
O.  S.  257,  262. 

Where  improvement  is  in  rear  of 
lot,  assessment  can  only  be  accord- 
ing to  width  of  front  of  lot.  Frid- 
man  v.  Norwood,  1  C.  C.  (N.  S.) 
97;  25  C.  C.  258  (aff'd  49  B.  99). 

Where  a  street  runs  around  three 
sides  of  a  lot  the  assessment  must 
be  apportioned  to  approximate  uni- 
formity. Locke  v.  Cincinnati,  7 
N.  P.  318. 


Court  will  consider  prior  leases 
or  conveyances  in  determining  how 
much  land  belongs  to  a  corner  lot 
for  the  purpose  of  determining  the 
assessable  frontage.  Cincinnati  v. 
James,  2  N.  P.  345. 

As  to  estoppel  to  claim  that  lot 
should  be  assessed  only  by  the 
amount  of  frontage  on  its  real  front, 
because  of  admissions  in  a  petition 
for  the  improvement,  see  note  "  Es- 
toppel to  deny  frontage  "  under  §  62 
of  the  Code. 


Sec.  50a.  [When  council  shall  fix  fair  average  depth  for  lands 
not  subdivided  into  lots.]1  In  making  special  assessments  by 
percentage  of  the  tax  value  or  by  the  foot  front  on  lots  or  lands 
not  subdivided  into  lots,  when  such  lots  or  lands  are  not 
assessed  for  taxation,  the  council  shall  fix,  for  the  purpose  of 
said  assessment,  the  value  of  said  lots  as  they  stand  and  of  said 
lands  to  what  council  may  consider  a  fair  average  depth  of  lots 
in  the  neighborhood,  so  that  it  will  be  a  fair  average  of  the 
assessed  value  of  other  lots  in  the  neighborhood,  and  in  making 
such  assessments  in  either  of  said  ways  on  land  not  subdivided 
into  lots  but  which  are  assessed  for  taxation,  council  shall  fix 
the  value  and  depth  in  the  same  manner.2  Provided,  however, 
the  above  rule  shall  not  apply  in  making  special  assessment 
according  to  benefits.      [1904,  April  23,  97  v.  296.] 

old 


(1)  Old       sections.— See 

§    2269    R.    S.     (repealed)     and    §§ 
2264a  and  2271  R.  S.    (repealed). 

(2)  Land  in  bulk,  how  deter- 
mined.—  To  determine  whether 
land  is  in  bulk  or  in  city  lots  regard 
must  be  had  not  only  to  recorded 
plat,  but  size  of  lots  generally. 
Bailey  v.  Zanesville,  20  C.  C.  236; 
Springer  v.  Avondale,  35  O.  S.  620. 

A  tract  may  be  a  lot  and  not  land 


in  bulk,  though  not  platted,  if  not 
larger  than  fair  average  of  lots. 
Gibson  v.  Cincinnati,  27  B.  80. 

Situation  of  property  at  time  of 
improvement  ordinance  governs,  in 
determining  whether  land  is  in  bulk 
or  not.  Shiner  v.  Norwood,  17  C. 
C.   631. 

Purpose  of  provisions. —  A  pro- 
vision such  as  this  is  intended  to 
equalize  the  expense  upon  all  land 
benefited.     Where    land   is   in   bulk, 


Code    §    51]  ASSESSMENTS.        IN    GENERAL.  193 

council  must  determine  a  fair  aver-  v.  Youngstown,  43  0.  S.  162;  Find- 
age  depth  for  such  land  for  the  lay  v.  Frey,  51  O.  S.  390;  Cincin- 
purpose  of  the  assessment  and  fix  nati  v.  Oliver,  31  0.  S.  371;  Gris- 
a  value  for  such  part  as  is  as-  wold  v.  Pelton,  34  O.  S.  482. 
sessed,  so  that  it  can  be  seen  Injunction  will  lie  to  restrain 
whether  the  limitation  on  assess-  collection  of  assessment  on  land  in 
ments  has  been  exceeded  and  on  bulk  where  council  has  not  fixed 
what  part  of  the  land  the  lien  of  fair  average  depth.  But  court  may 
assessment  attaches.  Bailey  v.  fix  amount  properly  chargeable. 
Zanesville,  20  C.  C.  236;    Parmelee  Griswold  v.  Pelton,  34  0.  S*.  482. 

Sec.  51.  [Resolution  of  necessity;  plans,  specifications;  esti- 
mates and  profiles  to  be  prepared  and  filed  in  office  of  department 
of  public  service.]1  Whenever  it  is  deemed  necessary  by  any 
city  or  village,  to  make  any  public  improvement  to  be  paid  for 
in  whole  or  in  part  by  special  assessments  2  council  shall  declare 
by  resolution  (three-fourths  of  the  whole  number  elected 
thereto  concurring,  except  as  otherwise  provided  herein),  the 
necessity  of  such  improvement,3  At  the  time  of  the  passage 
of  said  resolution  council  shall  have  on  file  in  the  office  of  the 
board  of  public  service  in  cities,  and  of  the  clerk  in  villages, 
plans,  specifications,  estimates  and  profiles  of  the  proposed  im- 
provement, showing  the  proposed  grade  of  the  street  and 
improvement  after  completion,  with  reference  to  the  property 
abutting  thereon,  which  plans,  specifications,  estimates  and 
profiles  shall  be  open  to  the  inspection  of  all  persons  interested. 
Said  resolution  shall  determine  the  general  nature  of  the  im- 
provement, what  shall  be  the  grade  of  the  street,  alley,  or  other 
public  place  to  be  improved,  as  well  as  the  grade  or  elevation 
of  the  curbs  and  approve  the  plans,  specifications,  estimates  and 
profiles  for  the  proposed  improvement. 

[Council  to  determine  method  of  assessment,  etc.]  Council 
shall  also  determine  in  said  resolution  the  method  of  the  assess- 
ment, the  mode  of  payment  thereof,  and  shall  determine  whether 
or  not  bonds  shall  be  issued  in  anticipation  of  the  collection  of 


194 


THE    OHIO    MUNICIPAL    CODE.  [Code    §     51 


the  same.4  Assessments  for  any  improvement  may  be  payable 
in  one  to  ten  installments  and  at  such  time  as  council  may 
prescribe,  and  when  bonds  are  issued  in  anticipation  of  the 
collection  of  the  assessment,  the  interest  thereon  shall  be  treated 
as  part  of  the  cost  of  the  improvement  for  which  assessment 
may  be  made.  If  said  assessment  or  any  installment  thereof 
shall  not  be  paid  when  due,  they  shall  bear  interest  until  the 
payment  thereof  at  the  same  rate  as  the  bonds  issued  in  antici- 
pation of  the  collection  of  the  same,  and  the  county  auditor 
shall  annually  place  upon  the  tax  duplicate  the  penalty  and 
interest  therein  provided  for.5 

[Publication  of  resolution.]  Said  resolution  shall  be  pub- 
lished according  to  section  124  of  the  act  of  which  this  is 
amendatory,  but  shall  take  effect  upon  its  first  publication.6 
[1904,  April  21,  97  v.  121.] 


(1)    Old    sections.— See   old    §§ 

2304,  2264  and  2264a  R.  S.  repealed. 
(2 j   Procedure       limited.  —  It 

seems  that  the  procedure  nere  re- 
quired is  limited  to  the  making  of 
public  improvements  for  which  spe- 
cial assessments  are  to  be  levied. 
Other  improvements  are  required  to 
be  made  in  the  manner  provided  in 
the  sections  of  the  Code  governing 
the  appropriation  of  private  prop- 
erty and  the  duties  with  respect  to 
contracts  of  the  council,  directors 
of  public  service,  directors  of  public 
safety  and  trustees  of  public  affairs. 
See,  in  accord,  East  End  B.  &  T. 
Co.  v.  Cleveland,  1  N.  P.  (N.  S.) 
493   (aff'd  Cir.  Ct.). 

Compare  old  §  2304  R.  S.,  re- 
pealed, which  provided  that  "  when 
it  is  deemed  necessary  by  a  city  or 
village  to  make  a  public  improve- 
ment" council  shall  declare  the  ne- 
cessity, give  notice  to  the  owners 
of    abutting    property,    etc.     Ques- 


tions  as    to    what   public    improve 
ments   required   the  procedure  pro 
vided    in    §    2304    arose    in    Krum 
berg  v.    Cincinnati,    29    O.    S.   6J 
Caldwell  v.  Carthage,  49  O.  S.  334 
Tyler    v.   Columbus,    6    C.   C.    224 
Becher   v.    McCloud,   4   C.    C.    305 
Nitzel  v.  St.  Bernard,  3  N.  P.  317 
Fergus  v.  Columbus,  6  N.  P.  82,  91 
Garvin  v.   Columbus,   5  N.   P.    236, 
239;    Rademacher  v.  Cincinnati,  21 
B.  244;  Longworth  v.  Cincinnati,  23 
B.    100;    Strauss   v.    Cincinnati,   24 
B.  422. 

(3)  Resolution  of  necessity. — 
Due  passage  jurisdictional. —  Reso- 
lution declaring  necessity  and  its 
due  publication  were  held  to  be 
conditions  precedent,  under  former 
statutes,  to  the  power  of  council  to 
pass  the  improvement  ordinance. 
Welker  v.  Potter,  18  O.  S.  85; 
Stephan  v.  Daniels,  27  O.  S.  527; 
Smith  v.  Toledo,  24  O.  S.  126;  Cin- 
cinnati v.  Corry,  2  B.  337.  But  see 
Upington  v.    Oviatt,   24  O.   S.   232. 


Code  §  51] 


ASSESSMENTS.      IN    GENERAL. 


195 


Object  of  resolution. — Though  the 
legislature,  in  providing  for  the 
adoption  and  publication  of  pre- 
liminary resolution  had  in  view, 
under  former  §  2304  R.  S.  the  fix- 
ing of  time  within  which  those 
claiming  damages  must  make  their 
claims,  yet  this  was  not  the  only 
object  of  the  requirements.  They 
were  calculated  to  prevent  a  hasty 
and  inconsiderate  exercise  of  pow- 
er. Smith  v.  Toledo,  24  0.  S.  126, 
132. 

Passage  of  resolution-. —  Such  a 
resolution  would  be  a  resolution  of 
a  general  or  permanent  nature  with- 
in the  meaning  of  §  1694  R.  S.; 
Campbell  v.  Cincinnati,  49  0.  S. 
463;  Thatcher  v.  Toledo,  19  C.  C. 
311,  315;  but  see  Upington  v.  Ovi- 
att,  24  O.  S.  232. 

Resolution,  what  to  contain. — 
Resolution  sufficiently  establishes 
grade  and  orders  improvement  if  it 
refers  to  plans  and  specifications  on 
file  in  office  of  engineer  though  that 
office  is  located  outside  of  village. 
Wood  v.  Pleasant  Ridge,  12  C.  C. 
177. 

Where  resolution  is  broad  enough 
to  cover  improvement  including  re- 
taining wall  it  is  not  necessary  that 
another  resolution  declaring  neces- 
sity for  retaining  wall  be  passed  to 
authorize  separate  contract  for  such 
wall  found  necessary  after  work 
partly  done  and  paid  for  by  assess- 
ment. Cincinnati  v.  Shaw,  3  B. 
556.  Separate  item  not  specified  in 
resolution  may  nevertheless  be  au- 
thorized. Dixon  v.  Cincinnati,  11 
C.  C.  629.  Resolution  may  except 
an  intermediate  part  of  the  street 
to  be  improved.  Wilder  v.  Cin- 
cinnati, 26  0.  S.  284.  It  may  or- 
der improvement  of  several  streets 
or  parts  of  streets  if  all  is  but  one 
improvement.  Irwin  v.  Greenville, 
1  Davton.  140. 


Construction. —  Resolution  to  im- 
prove a  street  one  side  only  of  which 
is  within  city  limits  will  be  con- 
strued to  mean  the  improvement  of 
that  part  only  which  is  within  the 
city.  Scully  v.  Cincinnati,  1  C.  S. 
C.  R.  183,  187. 

As  to  construction  of  resolution  or 
ordinance  not  clearly  defining  ter- 
mini of  improvement,  see  Ridenour 
v.  Saffin,  1  Handy,  464. 

What  defects  in  resolution  cured 
by  curative  statute,  see  notes  under 
§  2289  R.  S.,  p.  267. 

Method  of  assessment  described 
in  resolution  or  ordinance  to  im- 
prove cannot  be  departed  from  and 
a  different  method  adopted  when  as- 
sessment is  made.  Dick  v.  Toledo, 
11  C.  C.  349.  As  to  method  of  as- 
sessment which  might  be  prescribed 
under  former  statutes,  see  Kelley 
v.  Cleveland,  34  O.  S.  468;  Irwin  v. 
Greenville,  1  Dayton,  140;  Dick  v. 
Toledo,  11  C.  C.  349. 

(4)  Right  to  pay  cash.— Where 
the  assessing  ordinance  fails  to  pro- 
vide the  right  to  pay  all  assessments 
in  cash,  the  ordinance  is  not  void, 
but  the  owner  may  still  exercise  the 
right.  Dodsworth  v.  Cincinnati,  18 
C.  C.  288. 

(5)  Collection  of  installments. 
—  Such  installments  are  to  be 
placed  on  the  tax  duplicate  and  col- 
lected as  other  taxes.  Makley  v. 
Whitmore,  61  O.  S.  587. 

By  §  94  of  the  Code  it  is  made 
the  duty  of  the  clerk  of  council  to 
certify  all  installments  of  assess- 
ments, whether  past  due  or  not,  to 
the  county  auditor  annually  (where 
bonds  are  issued  in  anticipation  of 
their  collection),  and  such  assess- 
ments are  then  collected  as  other 
taxes. 

See  note  2  under  §  2286  R.  S.,  p. 
265. 


196  THE    OHIO    MUNICIPAL    CODE.  [Code    §     51 

Assessment      on      tax      duplicate  between    the    municipality    and    the 

prima   facie   valid   and    the   burden  owners    of    property    assessed.     Up- 

is   on   the   property   owner  to   show  ington  v.  Oviatt,  24  0.  S.  232. 
invalidity.     Murphy     v.     Sims,     13  And  omission  to  publish  the  pre- 

Dec.  62.  liminary  resolution  is  a  fatal  defect 

(6)    Publication.  —  How    made.  which  is  not  cured  by  a  curative  act 

—  See  note  to  §  124  of  the  Code.  relating   to   technical   irregularities. 

Effect    of    omission    to    publish. —  Welker  v.  Potter,  18  O.  S.  85.     But 

Publication  of  the  preliminary  res-  see    Upington    v.    Oviatt,    24    O.  S. 

olution  as  required  by  former  stat-  232,  and  see  Bolton  v.  Cleveland,  35 

utes  was  held  to  be  mandatory  as  O.  S.  319. 

ORDER  OF  PROCEDURE  IN  STREET  IMPROVEMENTS  FOR  WHICH 
ASSESSMENTS  ARE  LEVIED. 

1.  Resolution  of  necessity  (three-fourths  of  council  concurring),  and 
determining  grade,  approving  plans,  specifications  and  estimates,  and  fixing 
the  method  of  assessment,  the  mode  of  payment,  and  whether  or  not  bonds 
shall  be  issued  in  anticipation  of  collection.      (§51  of  the  Code.) 

This  resolution  may  be  passed  at  one  meeting  only  by  suspension  of  rule 
provided  in  §  122  of  the  Code.  It  must  be  published.  (§§  51  and  124  of 
the  Code.) 

2.  Notice  to  the  owners  of  property  to  be  assessed,  served  by  the  clerk  of 
council  or  an  assistant,  and  on  non-residents  by  publication.  (§  52  of 
the  Code.) 

3.  Claims  for  damages,  to  be  filed  by  the  owners  of  abutting  property. 
(§  54  of  the  Code.) 

4.  Ordinance  to  proceed  with  the  improvement  (three-fourths  of  council 
concurring ;  see  §  6 1  of  the  Code ) ,  determining  whether  claims  for 
damages  shall  be  judicially  inquired  into  before  commencing  or  after  the 
completion  of  the  improvement;  directing  the  solicitor  or  mayor  to  insti- 
tute proceedings  to  inquire  into  such  claims;  determining  the  mode  of 
payment  for  the  improvement;  setting  forth  specifically  the  lots  and  lands 
to  be  assessed;  describing  the  general  nature  of  the  improvement  and  the 
character  of  materials  to  be  used;  giving  a  reference  to  the  improvement 
resolution  theretofore  passed,  with  the  date  of  its  passage  and  the  declara- 
tion of  intention  to  proceed  with  the  improvement  in  accordance  with  said 
resolution  and  plans.  If  the  estimated  cost  of  the  improvement  is  more 
than  five  hundred  dollars,  this  ordinance  should,  in  cities,  authorize  and 
direct  the  board  of  public  service  to  make  a  contract  with  the  lowest  and 
best  bidder,  after  advertisement  according  to  law;  and  in  villages,  the 
ordinance  should  direct  the  clerk  to  advertise  for  bids,  and  the  contract 
should  be  awarded  by  council  to  the  lowest  and  best  bidder,  and  executed  by 
the  mayor  and  clerk.  If  the  estimated  cost  is  less  than  five  hundred  dol- 
lars, the  contract  may  be  made  by  the  board  of  public  service  in  cities, 
and  by  council  in  villages,  without  advertisement.  (§§  55,  59,  143,  144 
and  198  of  the  Code.) 

This  ordinance  may  also  be   passed  at  one  meeting  by   suspending  the 


Code    §    51]  ASSESSMENTS.        IN    GENERAL.  197 

rule,   and  should   be  published.      (See   §§    122   and   124  of  the   Code,   and 
§  1695  R.  S.  re-enacted  in  §  124  of  the  Code.) 

5.  Application  for  a  jury  to  inquire  into  claims  for  damages.  (§  56 
of  the  Code.)  (If,  in  the  ordinance  to  proceed,  it  has  been  determined  to 
inquire  into  the  damages  after  the  completion  of  the  improvement,  the 
inquiry  should  follow  such  completion.) 

6.  Advertisement  for  bids.     (See  §§  59,  143,  144  and  198  of  the  Code.) 

7.  Award  and  execution  of  contract.  (§§  59,  143,  144  and  198  of  the 
Code.) 

8.  Appointment  of  three  disinterested  freeholders,  and  equalizing  of  as- 
sessments where  the  assessment  is  in  proportion  to  benefits.  See  "  Order  of 
procedure  for  assessments  by  benefits,"  under  §  68  of  the  Code. 

9.  Assessing  ordinance.  There  is  no  requirement  that  the  ordinance 
levying  the  assessment  shall  have  more  than  a  majority  vote  of  council, 
and  there  seems  to  be  none  that  it  should  be  published,  though  its  publica- 
tion would  be  advisable.  An  assessing  ordinance  might,  as  to  method  of 
passage,  be  regarded  as  the  levying  of  a  tax  and  should  be  read  on  three 
different  days  unless  three-fourths  of  council  suspend  the  rule.  §  122 
of  the  Code. 


FORM   OF   RESOLUTION   DECLARING   NECESSITY   FOR   IMPROVE- 
MENT. 

Resolution   No 


Declaring  it  necessary  to  improve street  from to 

by  paving  ( or  constructing  sewer  or  making  other  improvement ) . 

Be  it  resolved  by  the  council  of  the  city   [or  village]   of . , 

State  of  Ohio,  three-fourths  of  all  members  elected  thereto  concurring: 

Sec.  1.     That  it  is  necessary  to  improve street,  from 

to ,  in  the  following  manner  (here  describe  general  nature  of  the 

improvement,  materials  to  be  used,  etc.)  ; 

Sec.  2.     That  the  grade  of  said  street  as  improved  shall  be.* 

( "  the    existing   grade,"    or   "  the   grade    established   by   ordinance    passed 

,"  or  specifically  describe  the  grade  to  be  established  as  shown 

by  the  engineer's  plans )  ;  and  that  the  grade  of  the  curbs  shall  be 

(here  insert  grade  of  curbs  in  relation  to  that  of  street) . 

Sec.  3.  That  the  plans,  specifications,  estimates  and  profiles  of  the 
proposed  improvement  heretofore  prepared  by  the  engineer  [or  street 
commissioner]  and  now  on  file  in  the  office  of  the  department  of  public 
service  [or  in  villages,  of  the  clerk],  be  and  the  same  are  hereby  approved. 

Sec.  4.     That  the  whole  cost  of  said  improvement,  less  one-fiftieth  thereof 

and  the  cost  of  intersections  [or  " per  cent,  of  the  whole  cost  of  said 

improvement,  less  the  cost  of  intersections"],  shall  be  assessed  by  a  per- 
centage of  the  tax  value  thereof  [or,  "  in  proportion  to  the  benefits  which 
may  result  from  the  improvement,"  or,  "  by  the  foot  frontage  "]   upon  the 


198  the  ohio  municipal  code.  [Code  §   52 

following  described  lots  and  lands,  to-wit:  all  lots  and  lands  bounding  and 
abutting  upon  the  proposed  improvement  (or,  here  describe  specifically 
benefited  territory  to  be  assessed)  which  said  lots  and  lands  are  hereby 
determined  to  be  specially  benefited  by  said  improvement;  and  the  cost 
of  said  improvement  shall  include  the  expense  of  the  preliminary  and 
other  surveys,  and  of  printing  and  publishing  the  notices,  resolutions  and 
ordinances  required,  and  the  serving  of  said  notices,  the  cost  of  construction, 
together  with  interest  on  bonds  issued  in  anticipation  of  the  collection  of 
deferred  assessments,  and  all  other  necessary  expenditures.. 

Sec.  5.     That  the  assessments  so  to  be  levied  shall  be  paid  in 

annual  installments,  with  interest  on  deferred  payments  at per  cent 

per  annum;  provided,  that  the  owner  of  any  property  assessed  may,  at  his 

option,  pay  such  assessment  in  cash  within days  from  and  after 

the  passage  of  the  assessing  ordinance,  in  which  case  said  cash  assessment 
shall  not  include  any  item  of  interest  upon  bonds  to  be  issued  in  anticipa- 
tion of  the  collection  of  deferred  installments  of  assessments. 

Sec.  6.     That  bonds  of  the  city  [or  village]  of shall  be  issued 

in  anticipation  of  the  collection  of  assessments  by  installment  and  in  an 
amount  equal  thereto. 

Sec.  7.  That  the  remainder  of  the  entire  cost  of  said  improvement,  not 
specially  assessed,  including  the  cost  of  intersections,  together  with  the 
cost  of  any  real  estate  or  interest  therein,  purchased  or  appropriated, 
and  the  costs  and  expenses  of  any  appropriation  proceeding  therefor,  and 
the  damages  awarded  any  owner  of  adjoining  lands  and  interest  thereon, 

and  the  costs  and  expenses  of  any  such  award,  shall  be  paid  out  of 

fund  [or  "by  the  issuance  of  bonds  in  the  manner  provided  by  law"]. 

Sec.  8.  This  resolution  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed ,  19 

Attest. 


Clerk.  President  of  Council. 

Sec.  52.  [Notice;  how  served.]1  A  notice2  of  the  passage 
of  the  resolution  required  in  the  last  preceding  section  shall  be 
served  by  the  clerk  of  council,  or  an  assistant,  upon  the  owner  3 
of  each  piece  of  property  to  be  assessed4  in  the  manner  pro- 
vided by  law  for  the  service  of  summons  in  civil  actions,  pro- 
vided, that  if  any  of  said  owners  or  persons  be  not  residents  of 
the  county,  or  if  it  appears  by  the  return,  in  any  case,  of  the 
notice  that  such  owner  cannot  be  found,  then  a  notice  of  the 


Code  §   52] 


ASSESSMENTS.        IN    GENERAL. 


199 


passage  of  said  resolution  shall  be  published  at  least  twice  in 
some  newspaper  of  general  circulation  within  the  corporation, 
and  such  notice,  whether  by  service  or  publication,  shall  be 
completed  at  least  twenty  days  before  the  improvement  is  made 
or  the  assessment  levied,  and  the  return  of  the  officer  or  person 
serving  such  notice,  or  a  certified  copy  of  said  return  shall  be 
'prima  facie  evidence  of  the  service  of  the  notice  as  herein 
stated.5     [1904,  April  21,  97  v.  122.] 


(1)  Old  section,  2304  R.  S.  re- 
pealed. 

(2)  Strict  construction. —  Re- 
quirements as  to  notice  must  be 
strictly  pursued.  Cincinnati  v. 
Sherike,  47  O.  S.  217. 

Must  be  written.— Notice  that 
is  required  is  a  notice  in  writing. 
Cincinnati  v.  Sherike,  47  O.  S.  217. 

Sufficiency. —  Notice  that  a  reso- 
lution was  adopted  declaring  it 
necessary  to  open  and  improve  a 
certain  street  between  certain  points 
by  grading,  etc.,  (specifying  the 
manner  of  improvement)  according 
to  plans  on  file  stating  that  the  ex- 
pense was  to  be  charged  per  front 
foot  upon  lands  abutting  was  held 
to  be  sufficient  under  former  sec. 
2304.  Canton  v.  Wagner,  54  O.  S. 
329. 

Notice  that  resolution  declaring 
it  necessary  to  improve  a  certain 
street  between  certain  points  and 
stating  the  manner  of  assessing 
cost  was  held  not  sufficient  to  inform 
the  property  owner  that  the  city 
contemplated  appropriating  an 
easement  for  sloping  fill.  Fenner  v. 
Cincinnati,  4  N.  P.  182. 

A  resolution  to  improve  by  change 
of  grade  should  set  forth  specifically 
extent  and  character  of  the  grade  so 
that    owners    may   know   the    effect 


upon  their  land.  See  Cincinnati  v. 
Corry,  23  B.  359. 

Service  of  notice. —  Under  for- 
mer §  2304,  it  was  held  that  the 
service  of  the  notice  must  be  per- 
sonal. McGee  v.  Avondale,  7  C.  C. 
246,  but  if  notice  was  left  at  the 
residence  or  mailed  and  was  duly 
received  it  would  be  sufficient.  Mc- 
Gee v.  Avondale,  7  C.  C.  246;  Green 
v.  Cincinnati,  7  C.  C.  233. 

Effect  of  want  of  notice. —  The 
service  of  notice  to  resident  land 
owners,  required  by  old  §  2304, 
was  held  to  be  a  condition 
precedent  to  the  exercise  of  the 
authority  to  pass  a  valid  ordinance 
ordering  the  improvement  so  far  as 
such  owners  are  concerned  or  to 
make  an  assessment  on  their  prop- 
erty to  pay  for  the  same,  and  the 
failure  to  give  notice  is  not  such 
an  irregularity  as  would  be  cured 
by  a  curative  statute.  Joyce  v. 
Barron,  67  O.  S.  264,  268;  but  see 
further,  Toledo  v.  McMahon,  9  C.  C. 
194;  Kirby  v.  Winton  Place,  7  N.  P. 
169;  Schmidt  v.  Elmwood  Place,  15 
C.  C.  351;  Knecht  v.  Cincinnati,  18 
C.  C.  875;  and  as  to  construction  of 
requirement  under  various  former 
statutory  provisions,  see  Bolton  v. 
Cleveland,  35  O.  S.  319;  Scovill  v. 
Cleveland,   1  O.  S.   126;   Chittenden 


200 


THE    OHIO    MUNICIPAL    CODE.  [Code    §     52 


v.  Columbus,  1  N.  P.  (N.  S.)  420; 
14  Dec.  333. 

An  owner  who  has  not  received 
notice  will  not  forfeit  his  right  to 
recover  damages  caused  by  the  im- 
provement because  of  failure  to  file 
claim.  Fenner  v.  Cincinnati,  4  N. 
P.  182. 

(3)  Owner  would  mean  any  one 
having  an  interest  in  the  real  estate 
and  includes  mortgagees  and  owners 
of  minor  interests  therein.  Savings 
Co.  v.  Cincinnati,  12  Dec.  218.  See 
also  Allison  v.  McCune,  15  O.  726; 
Smith  v.  Altick,  24  0.  S.  369,  377; 
Carpenter  v.  Canal  Co.,  35  0.  S. 
307,  317;  Harrison  v.  Sabina,  1  C. 
C.  49. 

See  also  Hopple  v.  Cincinnati,  16 
Dec.  557  (reversed  Super.  Ct.  Gen. 
term ) . 

Service  on  lessee  for  ten  years 
with  privilege  of  purchase  and  in 
whose  name  property  is  assessed  for 
taxation,  held  sufficient.  Clemmer 
v.  Cincinnati,  28  C.  C.  89;  7  C.  C. 
(iN.S.)  31. 

Service  of  notice  on  person  in 
whose  name  property  is  assessed  on 
tax  duplicate,  if  not  real  owner,  held 
not  sufficient.  Savings  Co.  v.  Cin- 
cinnati, 12  Dec.  218. 

State  need  not  be  served  where 
property  is  forfeited  to  state  for 
taxes.    lb. 

(4)  To  whom  notice  required. 

— No  notice  seems  required  to  be 
served  except  upon  the  owners  of 
property  to  be  assessed.  Old  §  2304 
R.  S.,  repealed,  required  notice 
to  all  owners  of  abutting  property. 
The  chief  purpose  of  this  notice  was 


held  to  be  the  giving  of  an  oppor- 
tunity to  file  claims  for  damages. 
Savings  Co.  v.  Cincinnati,  12  Dec. 
218.  The  purpose  of  the  notice  now 
required  seems  to  be  two-fold,  viz.: 
(1)  To  give  the  owners  of  property 
to  be  assessed  an  opportunity  to  be 
heard  against  the  improvement  or 
the  assessment  therefor,  and  (2) 
To  give  such  owners  an  opportunity 
to  file  any  claims  there  may  be 
for  damages.  It  follows  that  the 
owner  of  property  not  to  be  assessed 
and  to  whom  no  notice  of  a  pro- 
posed improvement  is  given,  need  not 
file  a  claim  under  §  54  in  order  to 
recover  damages  sustained,  but  is 
left  to  his  remedy  against  the  mu- 
nicipality independent  of  such  sec- 
tion. The  property  to  be  assessed, 
however,  will  usually  include  all  that 
may  be  damaged  by  the  improve- 
ment. See  East  End  B,  &  T.  Co.  v. 
Cleveland,  1  N.  P.  (N.  S.)  493;  An- 
derson v.  Columbus,  1  N.  P.  (N. 
S.)   541;   14  Dec.  180. 

Notice  not  waived  by  petitioning 
for  improvement,  unless  expressly 
stated  in  petition.  Joyce  v.  Barron, 
67  O.  S.  264. 

(5)  Prima  facie  evidence. — The 
return  of  the  officer  serving  the  no- 
tice was  held  prima  facie  evidence 
of  service  under  old  §  2315  R.  S., 
repealed,  and  the  burden  of  proof 
was  said  to  be  upon  the  property 
owner  who  denied  the  service. 
Strauss  v.  City,  23  B.  359. 


FORM  OF  NOTICE  TO  OWNERS  OF  PROPERTY  TO  BE  ASSESSED. 

To : 

You  are  hereby  notified  that  on  the day  of ,  19 ,  the 

council  of  the  city  [or  village]  of ,  State  of  Ohio,  duly  passed 

Resolution  No to  improve street  from to 

by     (here    describe    character    of    improvement)     in    accordance 

with  the  plans,  profiles,   specifications  and  estimates  on  file  in  the  office 
of  the  department  of  public  service  [or  in  villages,  of  the  clerk],  and  that 


Code    §     53]  ASSESSMENTS.        IN"    GENERAL.  201 

the  grade  of  the  street  and  curbs  shall  be  as  follows:  (here  repeat  de- 
scription of  grade  of  street  and  curbs  as  shown  in  improvement  resolution). 

That  the  costs  and  expenses  of  said  improvement  will  be  assessed  as 
follows :  ( here  repeat  the  method  of  assessment  and  the  lots  and  lands  or 
territory  to  be  assessed  as  shown  in  the  improvement  resolution ) . 

By  order  of  the  council  of  the  city  [or  village]  of 


Clerk. 

(If  the  assessment  is  to  be  by  the  front  foot  this  notice  should  go  to  all 
abutting  owners.  If  by  percentage  of  tax  value  or  according  to  benefits,  it 
should  go  to  all  whose  property  may  be  included  in  the  subsequent  assess- 
ing ordinance.) 

FORM  OF  RETURN  BY  OFFICER  SERVING  NOTICE. 

Received  the   above  notice   on  the day   of ,    19....,   and 

served  the  same  by  delivering  a  true  copy  thereof  personally,  (or  insert 
any  other  method  in  accordance  with  requirements  of  law  for  service  of 
summons  in  civil  actions)  up«n  the  following  persons  on  the  dates  below 
specified : 

Name.  Date  of  service.  Remarks. 

Clerk  [or  assistant]  of  the  City 
[or  Village]  of 

Sec.  53.  [Limitation  of  assessments.]1  In  all  cases  of  as- 
sessments, the  council  shall  limit  the  same  to  the  special  bene- 
fits 2  conferred  upon  the  property  assessed,  and  in  no  case  shall 
there  be  levied  upon  any  lot  or  parcel  of  land  in  the  corpora- 
tion any  assessment  or  assessments  for  any  or  all  purposes, 
within  a  period  of  five  years,  exceeding  331/3  per  cent,  of  the 
actual  value  thereof  after  improvement  is  made  ;3  provided,  that 
the  assessments  levied  for  the  construction  of  main  sewers 4 
shall  not  exceed  the  sum  that  would  in  the  opinion  of  council 5 
be  required  to  construct  an  ordinary  street  sewer  or  drain  of 
sufficient  capacity  to  drain  or  sewer  the  lots  or  lands  to  be 
assessed  for  such  improvement,  nor  shall  any  lots  or  lands  be 
assessed  that  do  not  need  local  drainage  or  which  are  provided 
therewith.6 

[Municipality  to  pay  portion  of  cost  of  ;mprovement ;  as  to 
intersections.]  In  all  municipalities  the  corporation  shall  pay 
such  part  of  the  cost  and  expense  of  improvements  for  which 
special  assessments  are  levied  as  council  may  deem  just,  which 


202 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    53 


part  shall  not  be  less  than  one-fiftieth  of  all  such  cost  and  ex- 
penses; and  in  addition  thereto,  the  corporation  shall  pay  the 
cost  of  intersections; 

[Limitation  as  to  reassessment.]  provided,  that  whenever 
special  assessments  have  been  levied  and  paid,  for  the  improve- 
ment of  any  street  or  other  public  place  the  property  so 
assessed  shall  not  again  be  assessed  for  more  than  one-half  the 
cost  and  expense  of  repaving  or  repairing  such  street  or  other 
public  place  unless  the  grade  of  the  same  is  changed  ;7 

[Municipality  may  issue  bonds  to  pay  its  share  of  costs.] 
provided,  that  any  city  or  village  is  hereby  authorized  to  issue 
and  sell  its  bonds  as  other  bonds  are  sold  to  pay  the  corpora- 
tion's part  of  any  improvement  as  aforesaid,  and  may  levy 
taxes  in  addition  to  all  other  taxes  authorized  by  law  to  pay 
such  bonds  and  the  interest  thereon.8  [1904,  April  21,  97  v. 
126.] 


(1)  Old  sections.— Old  §  2264, 
R.  S.  ( repealed ) .  See  also  old  § 
2283  R.  S.  (repealed).  For  old  § 
limiting  assessments  to  percentage 
of  tax  valuation,  see  §  2270  R.  S. 
(repealed).  Former  statutes  limit- 
ing assessments  to  percentage  of  ac- 
tual value  were  §§  2271  and  2264a 
R.  S.  (repealed). 

Compare  also  §  2380  R.  S.,  re- 
pealed, relating  to  limitation  of  sew- 
er assessments. 

(2)  Limited  to  special  benefits. 
— Even  without  any  statute  ex- 
pressly limiting  assessments  to  the 
special  benefits  conferred,  the  courts 
have  reached  the  conclusion  that 
they  must  be  so  limited  in  order 
to  be  constitutional.  In  Walsh  v. 
Barron,  61  O.  B.  15,  the  court  says 
that  "it  is  a  fundamental  principle 
underlying  special  assessments  that 
the  property  is  specially  bene- 
fited by  the  improvement  beyond 
"the  benefit  to  the  public  and  a 
ratable  assessment  to  the  extent  of 
such  benefit  is  proper  and  constitu- 
tional, but  in  no  case  can  it  exceed 
the  benefits."  See  also  Schroder  v. 
Overman,  61  O.  S.  1;  Dayton  v. 
Bauman,  66  O.  S.  379;  Walsh  v. 
Sims,  65  O.  S.  211. 

Benefits    from    the    improvement 


can  not  be  estimated  on  basis  that 
before  improvement  lots  had  become 
depreciated  in  value  because  mu- 
nicipality had  improperly  allowed 
street  to  become  a  public  dump. 
Kummer  v.  Cincinnati,  27  C.  C.  683 ; 
6  C.  C.   (N.  S.)   559. 

Courts  will  not  enjoin  an  assess- 
ment claimed  to  be  in  excess  of  spe- 
cial benefits  where  excess  is  because 
of  depreciation  in  value  since  im- 
provement. Murphy  v.  Sims,  13 
Dec.  62;  Borger  v.  Columbus,  27 
C.  C.  812;  6  C.  C.   (N.  S.)   401. 

An  assessment  merely  showing 
that  it  is  placed  on  "benefited  prop- 
erty" will  not  be  conclusively  pre- 
sumed to  be  limited  to  special  bene- 
fits. Chamberlain  v.  Cleveland,  34 
O.  S.  551. 

Where  the  assessment  is  according 
to  benefits  the  whole  amount  of  the 
benefit  must  be  apportioned  amongst 
the  lots  in  proportion  to  the  benefit 
of  each.    lb. 

But  it  is  not  necessary  that  the 
total  excess  of  benefits  be  first  as- 
certained before  total  assessment  is 
distributed  among  the  various  lots. 
It  is  sufficient  that  the  assessment  of 
each  lot  does  not  exceed  the  benefit 
to  that  lot  and  that  it  bears  only  its 
just  proportion  of  total  assessment. 


Code    §    53]  ASSESSMENTS.       IN    GENERAL. 


203 


Blair  v.  Caiy,  24  C.  C.  560;  2  C.  O. 
(N.  8.)  25;  Ayers  v.  Toledo,  26  C.  O. 
767  (reversed  on  other  grounds,  72 
O.  IS.  651).  See  further,  note  under 
§  68,  infra. 

An  ordinance  which  levies  the  as- 
sessment upon  abutting  property  by 
the  front  foot  without  further  pro- 
vision,  though  it  does  not  limit  it  to 
benefits,  was  held  not  void  if  in  fact 
it  could  be  shown  that  the  assess- 
ment did  not  exceed  the  special  bene- 
fits conferred.  Queen  City  Foundry 
Co.  v.  Cincinnati,  8  N.  P.  167;  Shoe- 
maker v.  Cincinnati,  68  O.  S.  603  j 
Schroder  v.  Overman,  61  O.  S.  1; 
and  see  Norwood  v.  Baker,  172  U.  S. 
267,  as  interpreted  in  French  v.  Bar- 
ber Asphalt  Co.,  181  U.  S.  .324. 

Where  benefits  exdeeded ; 
power  of  court. — Where  the  as- 
sessment has  exceeded  the  benefits, 
the  court,  in  a  suit  to  collect  the 
assessment  or  a  suit  to  enjoin 
the  collection,  may  determine  what 
amount  may  properly  be  assessed 
and  enjoin  collection  of  the  balance 
only.  Walsh  v.  Sims,  65  O.  S.  211; 
Benham  v.  Cincinnati,  26  C.  C.  17. 

Where,  however,  the  proper  mu« 
nicipal  authorities  have  determined 
that  the  assessment  does  not  ex- 
ceed the  benefits,  such  finding  and 
assessment  are  prima  facie  correct, 
and  the  court  should  not  interfere 
to  disturb  the  assessment,  unless  so 
manifestly  unjust  as  to  be  tanta- 
mount to  fraud  on  the  part  of  the 
authorities.  Price  v.  Toledo,  25  C. 
C.  617;  4.  C.  C.  (N.  S.)  57;  Ben- 
ham  v.  Cincinnati,  26  C.  C.  17;  see 
also  Chamberlain  v.  Cleveland,  34 
O.  S.  551 ;  Mechlem  v.  Cincinnati,  28 
C.  C.  216;  7  C.  C.  (N.  S.)  212.  The 
burden  of  proof  is  on  the  plaintiff, 
to  show  that  assessment  exceeds  ben* 
efit.  Yost  v.  Railway  Co.,  24  C.  O. 
169;  2  C.  C.   (N.  S.)    519. 

Waiver  of  limitation. — The 
limitation  that  assessments  must  not 
exceed  benefits  may  be  waived  by 
contract  by  persons  petitioning  for 
the  improvement.  Thornton  v.  Cin- 
cinnati, 26  C.  C.  33;  4  C.  C.  (N.  S.) 
31. 

For  matters  relating  to  estoppel 
to  contest  assessment  as  exceeding 
benefits,  because  of  petitioning  for 
the  improvement,  see  notes  under  § 
62  of  the  Code. 

(3)  Percentage  of  actual  value. 
— In  no  event  can  the  lot  owner  be 
assessed  for  more  than  his  ratable 


share  of  the  actual  cost  and  ex- 
pense of  the  improvement  and  he 
cannot  be  assessed  to  the  full 
amount  of  such  proportion  if  that 
exceed  the  statutory  limitation. 
Pike  v.  Cummings,  36  O.  S.  213. 

A  property  owner's  assessment 
will  not  be  reduced  because  subse- 
quent to  the  improvement  part  of 
the  property  was  dedicated  to  the 
city  for  street  purposes.  Wilson  v. 
Cincinnati,  5  N.  P.  68. 

Determination  of  value. — Where 
there  is  a  large  tract  of  land  as- 
sessed and  the  assessment  does  not 
exceed  the  percentage  limitation  of 
the  entire  tract  assessed,  the  assess- 
ment on  any  part  is  not  invalid  be- 
cause as  to  such  part  if  standing 
alone,  the  assessment  would  exceed 
the  percentage  of  value  allowable. 
Schroder  v.  Overman,  61  O.  S.  1. 

By  present  law  value  after  im- 
provement is  made,  governs.  As  to 
rule  under  former  laws,  see  Cham- 
berlain v.  Cleveland,  34  0.  S.  551. 

Sidewalks  and  sewers. —  The 
limitations  of  former  sections  on  as- 
sessments were  held  to  apply  to 
sidewalks,  (Norwood  v.  Building  As- 
I  sociation,  7  C.  C.  95),  and  to  sewers, 
(Cincinnati  v.  Connor,  55  O.  S.  82). 
.But,  as  to  sewers,  where  a  general 
plan  has  been  adopted,  see  Cincin- 
nati v.  Wewell,  16  B.  287. 

Separate  improvements.  —  The 
present  section  requires  that  no  as- 
sessment for  any  or  all  purposes  ex- 
ceeding thirty-three  and  one-half  per 
cent  of  the  actual  value  of  the  prop- 
erty assessed,  shall  be  levied  within 
-the  period  of  five  years.  This  would 
seem  to  restrict  the  aggregate 
amount  of  assessments  on  any  one 
piece  of  property  within  this  period 
whether  the  improvements  were  on 
the  same  or  a  different  street,  and 
whether  the  improvements  were  of 
the  same  or  a  different  character. 

Former  sections  limiting  amount 
of  assessments  within  a  given  period, 
were  not  of  this  broad  character. 
§  2271  R.  S.  (repealed)  limited  the 
amount  of  assessments  that  could 
'be  made  "for  any  improvement." 
This  was  held  to  mean  any  one  im- 
provement and  not  to  apply  to  two 
separate  improvements  such  as  a 
street  improvement  and  a  sidewalk 
improvement,  neither  of  which  ex- 
ceeds the  limitation  but  which  to- 
gether   might    exceed    it.     Hunt    v. 


204 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    53 


Hunter,  11  C.  C.  69;  Cole  v.  Hun- 
ter, 5  N.  P.  13;  Cincinnati  v.  Fug- 
man,  5  N.  P.  14;  Toledo  v.  Bank, 
7  N.  P.  330;  Drake  v.  Cincinnati, 
25  C.  C.  373.  §  2283  R.  S.  pro- 
vided that  the  same  territory  "  shall 
not  be  assessed  for  making  two  dif- 
ferent streets  or  avenues."  This  was 
held  to  apply  only  to  improvements 
on  different  streets,  and  not  to  sepa- 
rate and  distinct  improvements  on 
the  same  street.  Drake  v.  Cincin- 
nati, 25  C.  C  373;  but  the  limita- 
tion applied  though  the  improve- 
ments on  the  different  streets  were 
not  of  the  same  character.  Pretzin- 
ger  v.  Sunderland,  63  O.  S.  132. 
These  cases  do  not  apply  under  the 
present  section. 

The  aggregate  of  two  assessments 
may  exceed  the  limitation,  if  the 
owner  has  previously  waived  the 
limitation  as  to  one  of  them  by  peti- 
tioning for  the  improvement  or 
otherwise,  and  the  other  does  not 
itself  exceed  the  limitation.  Pun- 
shon  v.  Cincinnati,  27  B.  155.  __ 

Interest. —  If  the  interest  on 
bonds  issued  for  a  street  improve- 
ment, being  included  in  an  assess- 
ment, makes  the  same  exceed  the 
percentage  of  the  value  of  the  prop- 
erty allowed  by  law  to  be  assessed, 
injunction  will  lie  to  prevent  its  col- 
lection. Salem  v.  Mulford,  22  C.  C. 
397  (affirmed  without  report,  62  O. 
S.  632). 

Interest  on  deferred  installments 
which  increase  the  assessment  be- 
yond the  statutory  limitation  will 
be  enjoined.  Bonds  v.  Salem,  10  C. 
D.  822;  20  C.  C.  703. 

Excess  only,  void.— The  whole 
assessment  is  not  void  because  it  ex- 
ceeds the  limitation.  The  excess  is 
merely  not  collectible  and  must  be 
paid  by  municipality.  Upington  v. 
Oviatt,  24  O.  S.  232. 

Second  assessment  only,  inval- 
id.—  Where  there  have  been  two  as- 
sessments and  the  owner  has  paid 
the  last  in  full  it  was  held  that  he 
cannot  resist  the  first  because  the 
two  together  have  exceeded  the  lim- 
it, since  the  last  only  would  be  the 
defective  one.  Brooks  v.  Norwood, 
12  C.  C.  257.   . 

Estoppel  to  dispute  excess.— 
As   to   when   owner   is   estopped   by 


petitioning  for  improvement  or 
otherwise  to  resist  such  part  of  as- 
sessment as  exceeds  the  limitation, 
see  notes  under  §§61  and  62  of  the 
Code. 

(4)  Main  sewers. —  As  to  what 
is  a  main  sewer,  see  Cincinnati  v. 
Standard  Wagon  Co.,  1  N.  P.  387. 

Limitation  of  assessment  —  Un- 
der former  statutes  it  was  said  in 
Toledo  v.  Ry.  Co.,  4  C.  C.  113,  128, 
"  where  a  sewer  has  been  construct- 
ed, whether  the  municipal  corpora- 
tion which  constructed  it  has  been 
divided  into  sewer  districts  or  it- 
self constitutes  a  sewer  district; 
whether  it  is  a  main  sewer,  intended 
to  furnish  drainage  for  the  whole 
territory  lying  within  the  district, 
or  is  a  local  sewer  properly  so-called 
—  the  power  to  levy  special  assess- 
ments to  meet  the  cost  and  ex- 
penses of  such  an  improvement  is 
limited  to  what  would  be  the  fair 
cost  of  providing  .  .  .  .  '  an  or- 
dinary street  sewer,  or  drain  of 
sufficient  capacity  to  drain  or  sewer 
such  lots  and  lands.'  n 

(5)  Opinion    of    Council. — 

Whether  the  opinion  of  council  as 
to  the  size  of  sewer  which  will  be 
of  sufficient  capacity  to  drain  the 
lot  could  be  overruled  by  the  courts, 
quere.  It  certainly  could  not  be 
overruled  unless  there  has  been 
gross  abuse  of  discretion.  Stanley 
v.  Cincinnati,  13  Dec.  223. 

(6)  Local  drainage.— By  mu- 
nicipal sewers. —  Under  sections  of 
a  statute  such  as  this  property  al- 
ready provided  with  sewers  con- 
structed by  the  city  are  exempt  from 
further  sewer  assessment.  But  to 
claim  the  exemption  on  the  ground 
that  the  city  has  already  provided  a 
sewer  it  must  be  shown  that  the 
sewer  already  constructed  by  the 
city  is  one  for  the  use  of  the  proper- 
ty, amongst  others,  of  the  one  claim- 
ing the  exemption,  that  is,  it  must 
have  been  intended  for  and  used  for 
the  drainage  and  accommodation  of 
che  lots  abutting  on  the  street  in 
which  it  is  constructed.  Toledo  v. 
Brown,  2  N.  P.  45. 

Thus,  if  the  city  sewer  is  mere- 
ly for  the  purpose  of  draining  a 
pond  into  a  trunk  sewer,  but  not  to 


Code  §  53] 


ASSESSMENTS.      IN  GENERAL. 


205 


accommodate  lot  owners,  such  own- 
ers cannot  claim  exemption  from 
future  assessment.  Toledo  v.  Brown, 
2  N.  P.  45.  And  this  is  so  even 
though  such  lot  owners  had  secretly 
made  connection  with  such  sewer.  lb. 

So  a  sewer  for  surface  drainage 
only,  made  before  the  street  was  im- 
proved to  allow  property  owners  to 
connect  with  a  sewer  temporarily 
on  condition  that  they  should  pay 
when  a  regular  sewer  was  built,  is 
not  local  drainage  that  would  ex- 
empt. Cincinnati  v.  Honnigfort,  32 
B.  32.  But  in  a  case  where  prop- 
erty does  not  abut  on  the  street  in 
which  the  sewer  is  laid,  but  where 
non-abutting  lot  owners  have  the 
right  to  connect  with  such  sewer, 
they  will  be  held  to  be  already  pro- 
vided with  local  drainage.  Miller 
v.  Toledo,  12  C.  C.  706. 

A  sewer  built  by  a  city  many 
years  before,  having  no  proper  out- 
let, and  not  suited  to  the  condition 
of  the  property  at  the  later  time, 
nor  intended  by  the  city  even  at 
the  time  as  a  part  of  its  sewer  sys- 
tem, but  merely  as  a  temporary  ex- 
pedient, will  not  be  a  provision  for 
local  drainage  that  will  prevent  as- 
sessment for  a  sewer  suited  to  the 
needs  of  the  time.  Avondale  v. 
Scudder,  12  C.  C.  770.  So  where 
the  sewer  built  by  the  city  had  no 
proper  outlet,  merely  emptying  on 
private  property,  and  subject  to  be 
closed  at  any  time,  it  does  not  sat- 
isfy the  requirements  as  being  a  pro- 
vision for  local  drainage  and  no  ex- 
emption cm  be  claimed  thereby. 
Wilson  v.  Cincinnati,  5  N.  P.  68. 

The  mere  fact  that  an  -ordinance 
was  passed  by  a  municipality  pro- 
viding for  sewer  in  front  of  prop- 
erty of  the  one  claiming  exemption, 
but  which  sewer  was  never  con- 
structed, would  not  exempt  such 
propertv.  Cincinnati  v.  Bickett,  26 
O.  B.  49. 

By  private  sewers. — In  order 
to  give  application  to  the  exemption 
in  the  statute  it  is  not  necessary 
that  the  local  drainage  referred  to 
should  be  provided  by  municipal  au- 
thority. Ford  v.  Toledo,  64  O.  S.  92, 
98.  But  see  Johnson  v.  Avondale, 
1  C.  C.  229,  232;  Wewell  v.  Cincin- 
nati, 45  O.  B.  407.  Thus,  property 
though  not  supplied  with  a  regular 
system  of  city  sewerage,  but  which 
is  .completely  drained  by  an  exten- 
sive sewer  constructed  partly  by  the 


city,  and  partly  by  individuals,  was 
held  to  be  exempt  from  further  as- 
sessment. Wewell  v.  Cincinnati,  45 
O.  S.  407.  So  where  a  railway  com- 
pany had  constructed  a  permanent 
and  expensive  brick  sewer  that  com- 
pletely drained  its  property  it  was 
held  to  be  already  provided  with 
sewerage  and  thus  exempt.  Toledo 
v.  Railway  Company,  4  C.  C.  113. 
So  a  tile  sewer  constructed  by  a 
property  owner  receiving  and  dis- 
charging all  surface  and  other  drain- 
age into  trunk  sewer  will  be  held  to 
constitute  sufficient  local  drainage. 
Cincinnati  v.  Sullivan,  8  N.  P.  22. 

But  to  claim  exemption  because 
of  the  construction  of  a  private 
sewer  it  must  be  shown  that  the 
sewer  or  drain  was  of  such  dimen- 
sions, mode  of  construction,  location, 
outlet,  etc.,  as  would  belong  to  a 
sewer  built  by  the  municipality  sub- 
stantially in  conformity  to  the  re- 
quirements of  the  statute.  Toledo 
v.  Railway  Co.,  4  C.  C.  113,  131. 
So  draining  by  a  wooden  box  drain 
as  a  temporary  expedient  would  not 
be  sufficient.  Wewell  v.  Cincinnati, 
45  O.  S.  407,  422.  Property  own- 
ers are  not  exempt  merely  because 
they  made  such  private  arrange- 
ments for  draining  their  property 
as  are  satisfactory  to  themselves. 
Johnson  v.  Avondale,  1  C.  C.  229, 
232. 

But  if  private  sewer  afford  ade- 
quate drainage,  the  fact  that  mu- 
nicipality is  constructing  a  new  and 
better  sewer,  will  not  make  property 
owner  liable  for  assessment.  Lans- 
mead  v.  Cincinnati,  4  O.  L.  R.  135. 

The  "adequate  local  drainage,"  in 
order  to  give  exemption  from  as- 
sessment, must  be  such  as  to  include 
both  permanency  of  structure  and 
control.  Frey  v.  Millikin,  15  Dec. 
122;  Hildebrand  v.  Toledo,  27  C.  C. 
427. 

So,  a  connection  by  drain  through 
another  lot,  with  a  sewer,  where 
control  might  be  lost  by  sale  of  lot, 
held  not  adequate  local  drainage. 
Frey  v.  Millikin,  15  Dec.   122. 

By  natural  sewer  drainage. — 
Lands  and  lots  within  a  municipal- 
ity which  are  naturally  sufficiently 
drained  are  exempt  from  assessment 
for  sewers.  Cincinnati  v.  Hess,  19 
C.  C.  252. 

But  the  fact  that  there  is  a  per- 
manent water  course  to  which  a  lot 
reaches   back   and   into  which  it  is 


206 


THE  OHIO  MUNICIPAL  CODE. 


[Code  §  53 


drained,  will  not  be  sufficient  to  ex- 
empt it,  for  polluting  such  water 
course  would  be  unlawful,  even 
though  the  city  is  unlawfully  empty- 
ing a  sewer  into  such  water  course. 
Cincinnati  v.  Kasselmann,  23  B. 
392;  Hildebrand  v.  Toledo,  27  C.  C. 
427;  6  C.  0.   (N.  S.)   450. 

In  order  to  exempt  the  property 
owner,  the  drainage  claimed  must  be 
such  as  he  has  a  right  to  make,  ana 
cannot  be  one  that  creates  a  nuis- 
ance, lb.  Fred  v.  Millikin,  15  Dec. 
122;  and  the  fact  that  a  lot  is  pro- 
vided with  drainage  at  a  point  be- 
yond the  average  depth  of  lots  will 
not  exempt  it.    lb. 

The  fact  that  the  house  sewage  of 
the  house  on  the  lot  and  the  surface 
water  from  the  lot  are  carried  off, 
is  not  sufficient  to  support  the  con- 
tention of  complete  local  drainage. 
The  lot  is  not  completely  drained  un- 
less the  water  is  also  carried  off  that 
would  naturally  flow  on  to  it  from 
other  lots  above  it,  or  in  the  neigh- 
borhood. Stanley  v.  Cincinnati,  13 
Dec.  223;  1  N.  P.  (N.  S.)  235. 

Surface  drainage. — The  fact 
that  land  within  a  municipality  is 
supplied  with  sufficient  surface 
drainage  is  not  enough  to  entitle  it 
to  claim  "local  drainage"  within 
the  purview  of  the  statute.  The 
drainage  must  be  such  as  provides 
the  land  with  adequate  drainage  for 
the  necessary  and  useful  purposes 
of  sewerage.  Ford  v.  Toledo,  64 
O.  S.  92. 

Unimproved  property. — T  h  e 
fact  that  the  property  is  entirely 
unimproved  and  that  there  is  no 
immediate  need  for  drainage,  will 
not  exempt  it  from  assessment  for 
sewerage  purposes.  Ford  v.  Toledo, 
64  O.  8.  92. 

Land  not  subdivided,  if  sup- 
plied with  local  drainage  cannot  be 
partly  assessed  for  a  sewer  on  the 
ground  that  if  subdivided  the  part 
near  sewer  would  not  be  supplied 
with  independent  drainage.  Knabe 
v.  Cincinnati,  49  B.  37. 

Proposed  sewer  not  available, 
— See  note  to  §  87  of  the  Code,  p. 
254. 

How  determined,  generally, — 

Whether  a  lot  is  already  supplied 
with  sufficient  local  drainage  is  a 
question  more  or  less  of  opinion  and 
is  governed  by  no  fixed  standard. 
Miller  v.  Cincinnati,  18  C.  C.  869. 
The  question  is  to  be  determined 
bv  all  the  facts  and  circumstances 


surrounding  the  property  and  exist- 
ing at  the  time  of  assessing.  Cin- 
cinnati v.  Hess,  19  C.  C.  252. 

Conclusiveness  of  council's 
determination, — The  decision  of 
council  as  to  what  lots  are  already 
provided  with  local  drainage  will 
not  conclude  the  court's  inquiry  into 
this  question.  Toledo  v.  Railway 
Co.,  4  C.  C.  113. 

When  provision  applicable. — 
The  provision  of  former  §  2380  R. 
8.,  repealed,  exempting  from  assess- 
ment for  sewer  purposes  lots  or 
lands  which  are  provided  with  local 
drainage,  was  held  applicable  to  lat- 
eral as  well  as  main  sewers.  Stanley 
v.  Cincinnati,  13  Dec.  223;  1  N.  P. 
(N.  S.)  235.  See  also  Toledo  v.  Ry. 
Co.,  4  C.  C.  113.  But  see  further 
Ford  v.  Toledo,  64  O.  S.  92;  Hart- 
well  v.  Bldg.  Ass'n,  2  B.  287. 

Uniformity. — A  property  owner 
is  not  exempt  and  cannot  resist  an 
assessment  for  sewerage  purpose  on 
the  ground  that  other  abutting  prop- 
erty is  not  assessed  because  already 
provided  with  drainage.  Toledo  v. 
Potter,  19  C.  C.  661. 

Or  because  some  lots  have  been 
partly  exempted,  because  assessed 
for  a  reduced  frontage,  as  author- 
ized by  statute.  Cleneay  v.  Nor- 
wood, 14  O.  P.  D.  469;  2  0.  L.  R. 
462. 

Enjoining  assessment. — Prop- 
erty being  already  provided  with  lo- 
cal drainage,  the  owner  may  enjoin 
assessment  for  the  construction  of  a 
new  sewer  and  need  not  wait  until 
the  assessment  is  actually  levied. 
Potter  v.  Norwood,  21  C.  C.  461. 

(7)  Change  of  grade. — Even  if 
the  grade  is  changed,  the  property 
cannot  be  assessed  that  part  of 
the  expense  of  the  improvement 
which  includes  damages  awarded  to 
abutting  owners  for  the  change  of 
grade.  McGlynn  v.  Toledo,  22  C.  C. 
34    (affirmed,  47  B.  712). 

Sec.  64  of  the  Code  provides  spe- 
cially for  case  of  change  of  grade. 
See  that  section  and  notes. 

(8)  Bonds  for  municipality's 
portion  of  street  improvement. 
— The  issuance  of  bonds  not  in  an- 
ticipation of  collection  of  special  as- 
sessments, but  to  pay  the  munici- 
pality's portion  of  the  cost  of  a 
street  improvement,  held  not  to  be 
governed  by  the  provisions  of  the 
"Longworth  Bond  Act."  Columbus 
v.  Lazarus,  15  Dec.  187. 


Code    §    54]         ASSESSMENTS.       DAMAGES    TO    PROPERTY.  207 

(b)  Damages  to  abutting  property. 

Sec.  54.  [Claims  for  damages  to  be  filed  with  clerk  of  council; 
effect  of  failure  to  so  do.]1  An  owner2  of  a  lot>  or  of  land, 
bounding  or  abutting  3  upon  a  proposed  improvement,  claiming 
that  he  will  sustain  damages  by  reason  of  the  improvement, 
shall,  within  two  weeks  after  the  service,  or  the  completion  of 
the  publication  of  the  notice  mentioned  in  section  52?  file  a 
claim  4  in  writing  with  the  clerk  of  the  council,  setting  forth 
the  amount  of  the  damages  5  claimed,  together  with  a  general 
description  of  the  property  with  respect  to  which  it  is  claimed 
the  injury  will  accrue;  an  owner  who  fails  to  do  so,  shall  be 
deemed  to  have  waived  the  same,  and  shall  be  barred  from 
filing  a  claim  or  receiving  damages;  and  this  provision  shall 
apply  to  all  damages  which  will  obviously  result  from  the 
improvement,6  but  shall  not  deprive  the  owner  of  his  right 
to  recover  damages  arising,  without  his  fault,  from  the  acts 
of  the  corporation,  or  its  agents;  provided,  that  if  subsequent 
to  the  filing  of  such  claim,  the  owner  sells  the  property,  or  any 
part  thereof,  the  assignee  shall  have  the  same  right  to  damages 
which  the  owner  would  have  had  without  the  transfer. 
[1904,  April  21,  97  v.  122.] 

(1)   Old  section.— This  is  a  sub-  Dec.  33,  (aff'd,  Cir.  Ct.  49  B.  33). 
stantial  re-enactment  of  §  2315  R.  S.,  (2)   Who  may  claim  damages. 

repealed.  — A    mortgagee    of    property    dam-/, 

Constitutionality. —  Old    §    2315  aged  has  such  an  interest  that  he 

R.  S.  held  valid  in  Cleveland  v.  Hy-  may  claim   damages    for   change  of 

land,  18  C.  C.  868.     See  also  Reck-  grade,  and  if  he  received  no  notice, 

ner  v.  Warner,  22  O.  S.  275;  Cupp  may     maintain     action     for     such 

V.  Commrs,  19  0.  S.  173.  claim.     Savings  Co.  v.  Cincinnati,  12 

Strict    construction. —  This    sec-  Dec.  218. 
tion  barring  right  to  damages  when  (3)   Land  not  abutting  on  im- 

claim   not   filed,   should  be  strictly  provement.—  Old     §     2315    R.    S. 

construed.     East  End  B.  &  T.  Co.  v.  was  held  not  to  apply  to  land  abut-' 

Cleveland,  1  N.  P.  (N.  S.)  493;  14  ting  the  street  but  not  abutting  pro- 


208 


THE    OHIO    MTj^IC'JSAX.    CODE. 


[Code  §  54 


posed  improvement  ( an  elevated  via- 
duct) and  the  owner  of  such  land 
need  not  file  claim.  Cohen  v.  Cleve- 
land, 43  O.  S.  190.  But  mu»icipal- 
ity  may  be  liable  though  land  does 
not  abut  immediately  upon  the  im- 
provement. Keating  v.  Cincinnati, 
38  O.  S.  141. 

When  improvement  touches  but 
one  corner  of  lot,  section  held  not 
to  apply.  Miller  v.  Cincinnati,  2 
B.  156.  On  question  of  lands  abut- 
ting improvement,  see  also  R.  R. 
Co.  v.  McLaughlin,  15  C.  C.  1 ;  Jack- 
son v.  Jackson,  16  O.  S.  163;  Birt- 
whistfe  v.  Cincinnati,  8  B.  25; 
Eagle  White  Lead  Co.  v.  Cincinnati, 
1  C.  S.  C.  R.  154. 

(4)  Failure  to  file  claim  is  an 

absolute  bar  to  recovery  in  all  cases 
where  statute  applies.  Hickox  v. 
Cleveland,  8  O.  543 ;  Cohen  v.  Cleve- 
land, 43  O.  S.  190;  R.  R.  v.  De- 
fiance, 52  O.  S.  262;  Cleveland  v. 
Hyland,  18  C.  C.  868 ;  Taber  v.  Bow- 
ling Green,  28  C.  C.  173  j  7  C.  C. 
(N.  S.)   385. 

A  verbal  claim  is  insufficient 
where  statute  requires  that  it  shall 
be  in  writing.  Anderson  v.  McKin- 
ney  et  al.,  24  O.  S.  467. 

(5)  Recovery  limited  to 
amount  claimed. —  See  Cleveland 
v.  Hyland,  18  C.  C.  868.  But  if 
property  owner  is  deceived  by  state- 
ments of  city  engineer  as  to  char- 
acter of  proposed  improvement,  the 
plans  and  profiles  being  unintelligi- 
ble, and  makes  a  compromise  of  his 
claim  this  will  not  bar  a  further  re- 
covery. Property  Owner  v.  Akron, 
7  N.  P.  454. 

Claim  cannot  be  increased  after 
time  for  filing  has  expired.  See 
Geib  v.  Cleveland,  7  N.  P.  301. 

When  filing  claim  unneces= 
sary. —  In  case  of  improvements 
which  are  not  to  be  paid  for  in 
whole  or  in  part  by  special  assess- 
ments, no  claim  for  damages  need  be 
filed  to  entitle  property  owner  to 
recover.  East  End  B.  &  T.  Co.  v. 
Cleveland,  1  N.  P.  (N.  S.)  493;  14 
Dec.  33,  (aff'd,  Cir.  Ct.  49  B.  33); 
and  see  note  2,  under  §  51  supra. 
But  claims  for  damages  may  be  filed 
in  such  case  at  property  owner's 
option.  East  End  B.  &  T.  Co.  v. 
Cleveland,  1  N.  P.  (N.  S.)  493;  14 
Dec.  33,    (aff'd,  Cir.  Ct.  49  B.  33). 


An  abutting  property  owner  to 
whom  no  notice  of  proposed  im- 
provement was  given  need  not  file 
claim  under  this  section.  Jacobs  v. 
Cincinnati,  2  N.  P.  283;  Toledo  v. 
McMahon,  9  C.  C.  194;  McGee  \. 
Avondale,  7  C.  C.  246.  As  to  suffi 
ciency  of  notice,  see  Fenner  v.  Cin- 
cinnati, 4  N.  P.  182.  Where  munic- 
ipality makes  one  a  party  to  suit  to 
assess  compensation  his  failure  to 
file  claim  is  waived.  Cincinnati  v. 
Sherike,  47  O.  S.  217.  Where  prop- 
erty owner  has  been  misinformed 
by  city  engineer  as  to  change  of 
grade  and  thus  led  not  to  file  a 
claim,  his  failure  will  not  prevent  re- 
covery. Youngstown  v.  Moore,  30 
O.  S.  133.  As  to  necessity  for  filing 
claim  under  §  2326  R.  S.,  re-enacted 
in  §  94  of  the  Code,  see  notes  thereto. 
If  notice  is  not  sufficient  to  inform 
property  owner  with  reasonable  cer- 
tainty of  the  effect  of  proposed  im- 
provement upon  his  lands  he  is  not 
barred  from  recovering  damages  sus- 
tained by  failure  to  file  claim.  Cin- 
cinnati v.  Corry,  23  B.  359. 

(6)   Basis     of     recovery. —  The 

basis  of  the  recovery  of  damages  is 
that  the  abutting  owner  has  been 
misled  by  the  municipality  to  his 
prejudice.  Right  of  access  to  and 
from  the  street  is  property,  and 
where  an  owner  has  improved  his 
lot,  relying  upon  a  previously  estab- 
lished grade  or  upon  a  reasonable 
grade  thereafter  to  be  established, 
and  the  municipality  changes  the 
established  grade  or  establishes  an 
unreasonable  grade,  in  either  case 
so  as  to  injuriously  affect  the  access 
of  the  abutting  owner,  he  is  entitled 
to  recover  the  damages  thereby  sus- 
tained, for  it  is  not  just  that  he 
should  bear  the  whole  loss.  Goodloe 
v.  Cincinnati,  4  O.  500;  Smith  v. 
Cincinnati,  4  O.  514;  Le  Clercq  v. 
Gallipolis,  7  O.  218;  Hickox  v. 
Cleveland,  8  O.  543;  Rhodes  v. 
Cleveland,  10  O.  159;  Bingham  v. 
Doane,  9  O.  165;  Akron  v.  McComb, 
18  O.  229;  Crawford  v.  Delaware,  7 
O.  S.  459;  Cincinnati  v.  Penny,  21 
O.  S.  499 ;  Akron  v.  Chamberlain,  34 
O.  S.  328;  Ryan  v.  Cinti,  1  C.  C. 
558;  Cincinnati  v.  Weber,  23  C.  C. 
651;  3  C.  C.  (N.  S.)  56;  East  End 
B.  &  T.  Co.  v.  Cleveland,   1   N.  P. 


Code    §    54]         ASSESSMENTS.       DAMAGES    TO    PROPERTY. 


209 


(N.  S.)  493;  14  Dec.  33,  (aff'd,  Cir. 
Ct.  49  B.  33). 

Owner  cannot  enjoin  improvement 
until  damages  have  been  paid  or  se- 
cured. East  End  B.  &  T.  Co.  v. 
Cleveland,  1  X.  P.  (N.  S.)  493;  14 
Dec.  33,   (aff'd,  Cir.  Ct.  49  B.  33). 

Change     of     existing    grade. — 

Municipality  is  liable  where  abut- 
ting owner  has  improved  his  lot 
with  reference  to  an  existing  grade 
and  the  grade  is  subsequently 
changed  to  his  damage.  Akron  v. 
Chamberlain,  34  O.  S.  328,  and 
other  cases  cited  above.  Where 
grade  that  is  changed  is  that  of  an 
old  highway  adopted  and  used  as  a 
street,  municipality  is  liable  for 
damages  to  improvements  made  with 
reference  to  the  old  grade.  Youngs- 
town  v.  Moore,  30  O.  S.  133;  but 
change  in  the  grade  of  a  canal  tow- 
path  gives  no  cause  of  action.  Chat- 
field  v.  Cincinnati,  1  B.  125.  Where 
turnpike  grades  are  changed  after 
becoming  city  streets,  owners  of 
abutting  property  damaged  may  re- 
cover. Cincinnati  v.  Williams,  10 
Rec.    705. 

An  existing  grade  need  not  have 
been  established  by  ordinance  to 
justify  property  owners  in  improv- 
ing it;  its  establishment  may  be 
shown  by  nature  of  surface  im- 
provement by  municipality,  pro- 
vided same  is  not  merely  temporary. 
Akron  v.  Chamberlain,  34  O.  S.  328, 
336.  Whether  municipality  has  by 
use  adopted  a  surface  grade  is  a 
question  for  the  jury.  Chatfield  v. 
Cincinnati,  1  B.  125.  Improve- 
ments for  temporary  convenience  do 
not  indicate  establishment  of  grade. 
McGee  v.  Avondale,  31  B.  163.  Lay- 
ing of  sewers  and  sidewalks  in  an 
unimproved  street  does  not  estab- 
lish a  grade.  Neubert  v.  Toledo, 
9  C.  C.  462.     Long  user  may  estab- 


lish the  grade  of  the  traveled  por- 
tion only  of  a  street,  and  where 
improvements  are  made  with  ref- 
erence to  grade  immediately  in 
front  of  owner's  premises  city  can- 
not be  held  for  damages  by  chang- 
ing the  grade  of  the  whole  street. 
Cincinnati  v.  Roth,  20  C.  C.  317; 
and  the  grade  of  the  traveled  and 
improved  portion  of  a  roadway  de- 
termines the  grade  for  the  entire 
width.     lb. 

After  municipality  has  estab- 
lished grade  it  must  proceed  with 
improvement  within  reasonable 
time,  and  when  this  is  not  done  a 
property  owner  building  with  ref- 
erence to  old  grade,  but  after  estab- 
lishment of  new,  may  recover  dam- 
ages. Nolte  v.  Cincinnati,  3  C.  C. 
503.  And  where  city  fails  for  six 
months  to  pay  damages  awarded 
for  change  of  grade,  it  will  be  held 
to  have  abandoned  the  improvement. 
Toledo  v.  Jacobson,  11  C.  C.  220. 
Where  an  agreement  of  annexation 
of  a  village  to  a  city,  provided 
that  grades  of  the  village  streets 
should  not  be  changed  without  con- 
sent of,  and  compensation  to.  the 
owners  of  abutting  property,  it  was 
held  that  such  agreement  merely 
secured  to  such  owners  the  same 
rights  as  if  such  streets  had  been  es- 
tablished by  the  city.  Thale  v. 
Cincinnati.  1  N.  P.  427.  Municipal- 
ity cannot  bind  itself  by  agreement 
not  to  change  the  grade  of  a  street. 
lb.  See  also  Gas  Light  and  Coke 
Co.  v.  Columbus,  50  O.  S.  65;  Corry 
v.  Cincinnati.  22  B.  194.  As  to  ef- 
fect of  consent  of  property  owner 
to  change  of  grade  see  Feuerstein  v. 
Jackson     8  C.   C.   396. 

Establishment  of  unreasonable 
gra^e. —  Municipality  is  liable 
where  abutting  owner  improves  be- 
fore any  grade  is  established  and 
subsequently  an  unreasonable  grade 


210 


the  ohio  municipal  code.         [Code  §   54 


is  made.  Akron  v.  Chamberlain,  34 
O.  S.  328;  but  owner  in  improving 
must  anticipate  a  reasonable  grade. 
lb.  But  where  owner  makes  im- 
provements after  a  grade  has  been 
established  but  before  the  street  is 
built  to  conform  to  it,  he  cannot  re- 
cover, even  though  such  grade  is  un- 
reasonable. Cincinnati  v.  Weber,  23 
C.  C.  651;  3  C.  C.   (N.  S.)   56. 

When  no  grade  has  been  estab- 
lished by  ordinance  or  user,  property 
owner  is  not  entitled  to  damages 
when  grade  is  established,  unless  it 
is  an  unreasonable  grade.  Ross  v. 
Cincinnati,  24  C.  C.  43;  2  C.  C.  (N. 

B.  594  (affirmed,  67  O.  S.  521)  ;  Ta- 
ber  v.  Bowling  Green,  28  C.  C.  173 ; 
7  C.  C.  (N.S.)  385. 

What  is  a  reasonable  grade. — 
Establishment  by  municipality  is 
not  conclusive  of  reasonableness. 
Pitton  v.  Cincinnati,  3  C.  C.  593. 
Reasonableness  of  grade  is  a  ques 
tion  for  the  jury.  lb.  Reasonable 
ness  of  grade  cannot  be  shown  by 
opinion  of  a  witness,  but  jury  must 
determine  this  from  facts  put  in 
evidence.     Feuerstein  v.  Jackson,   8 

C.  C.  396,   399. 

Owner  of  unimproved  lot  can- 
not recover  damages  for  change  of 
grade,  being  presumed  to  purchase 
with  a  view  to  a  reasonable  im- 
provement of  the  street.  Crawford 
v.  Delaware,  7  O.  S.  459;  Leonard 
v.  Cassidy,  8  C.  C.  529. 

What  is  an  improved  lot. — 
Buildings  constitute  improvement, 
and  damages  to  them  are  recovera- 
ble. Crawford  v.  Delaware,  7  O. 
S.  459;  Akron  v.  Chamberlain,  34 
O.  S.  328 ;  Keating  v.  Cincinnati,  38 
O.  S.  141. 

Grading  to  an  established  grade 
is  an  improvement,  and  when  the 
change  destroys  the  value  of  such 
grading  the  same  may  be  recovered, 
not  exceeding  in  amount  the  value 
of  the  lot.  Seasongood  v.  Cincin- 
nati, 5  C.  C.  225;  affd.,  51  O.  S. 
611.  Updh  same  principle  the 
building  of  fences  and  walls  and  the 
planting  of  trees,  hedges  and  shrub- 
bery are  improvements.     Cincinnati 


v.  Williams,  10  Rec.  705;  so  is  a 
sidewalk.  Kellner  v.  Dayton,  1  Day- 
ton, 28. 

Measure  of  damages. —  The 
owner  is  entitled  to  that  sum 
which  represents  the  diminution  in 
value  of  his  property  caused  by 
change  of  grade  or  the  establish- 
ment of  an  unreasonable  grade. 
General  benefits  derived  from  the 
improvement  cannot  be  offset, 
though  special  and  local  benefits  not 
such  as  are  conferred  upon  other 
abutting  property  may  be  so  offset. 
Martin  v.  Bond  Hill,  7  C.  C.  271; 
Cincinnati  v.  Williams,  10  Rec.  705; 
R.  R.  Co.  v.  Gardner,  45  O.  S.  309, 
323;  Carlisle  v.  Cincinnati,  8  C.  C. 
(N.  S.)  46.  The  measure  of  dam- 
ages is  the  difference  in  value  of  the 
property  as  a  whole,  and  the  owner 
cannot  recover  for  injury  to  trade  or 
business  or  extra  expense  connected 
therewith,  caused  by  the  change  of 
grade.     Cincinnati  v.  Whetstone,  12 

B.  247.  Property  owner  cannot  re- 
cover for  unsightliness  of  his  prem- 
ises or  obstruction  of  view  caused 
by  the  improvement.  Cincinnati  v. 
Williams,  10  Rec.  705.  Recovery  is 
limited  to  diminution  in  value  of 
the  improvements  on  owner's  prop- 
erty, lb.;  and  where  buildings  are 
just  as  conveniently  located  with 
respect  to  new  grade  as  they  were 
with  respect  to  old  he  cannot  re- 
cover. Lotze  v.  Cincinnati,  61  O.  S. 
272.  On  measure  of  damages,  see 
also  R.  R.  Co.  v.  Martin,  10  W.  L. 
J.  54;  Chatfield  v.  Cincinnati,  1  B. 
125;  White  v.  Cincinnati,  47  B. 
169,  edit. 

When  damages  payable. —  The 
property  owner  is  entitled  to  com- 
pensation before  the  improvement 
is  made.     Ryan  v.  Cincinnati,  1  C. 

C.  558;  Crawford  v.  Delaware,  7  O. 
S.  459;  Ry.  Co.  v.  Cumminsville,  14 
O.    S.   523. 

Property  owner  entitled  to  in- 
terest on  award  of  damages 
from  time  change  of  grade  is 
made.     Cincinnati  v.  Whetstone,  47 


Code    §     54]  ASSESSMENTS.       DAMAGES    TO    PROPERTY.  211 


O.  S.  196;  and  this  is  from  the  time 
the  work  is  begun.  Cincinnati  v. 
Williams,  9  B.  243.  When  interest 
alone  not  paid,  separate  action  may 
be  brought  for  it.  Toledo  v.  Scott, 
23  B.  238. 

Street  acquired  by  dedication 
or  appropriation  may  be  improved 
to  a  reasonable  grade  without  lia- 
bility to  abutting  owner  for  any 
injury  resulting  therefrom,  includ- 
ing the  removal  of  lateral  support, 
all  such  damages  being  considered 
waived  by  dedication  or  included  in 
the  award.  Grant  v.  Village  of 
Hyde  Park,  47  B.  831,  67  O.  S. 
166;  Tenney  v.  Cincinnati,  47  B. 
832;  24  C.  C  237;  67  O.  S.  518; 
Ross  v.  Cincinnati,  24  C.  C.  43;  2 
C.  C.  (N.  S.)  594,  (affirmed,  67  O. 
S.  521).  But  see  contra,  Harlow  v. 
City,  Cin.  Court  Index,  June  9, 
1902;  Columbus  v.  Williard,  7  C.  C. 
113. 

Damages  cannot  be  included  in 
assessment. —  See  McGlynn  et  al. 
v.  Toledo,  22  C.  C.  34  (affd.  47  B. 
712;  Carlisle  v.  Cincinnati,  8  C.  C. 
(N.  S.)  46;  see  note  (1)  under 
§  2284,  p.  262. 

Enjoining  public  improvement. 

—  When  proposed  change  of  grade 
threatens  injury  to  private  property 
and  ultimate  relief  is  compensation, 
<K)urt  may  refuse  injunction  and  re- 
tain case  for  assessment  of  dam- 
ages. Turnpike  Co.  v.  Commrs.,  5 
N.  P.  423. 

Injunction  refused  against  city's 
proceeding  with  improvement  where 
damages  for  change  of  grade  have 
been  paid,  but  plaintiff  has  not  been 
paid  for  sloping  fill.  Fogarty  v. 
Cincinnati,  7  N.  P.  100. 

Property  owner  to  whom  jury  in 
change  of  grade  case  allowed  no 
damage  must  seek  remedy  in  error 
proceedings;    he   cannot  enjoin   the 


improvement.     Frevert  v.   Finfrock, 
31  O.  S.  621. 

Property  owner  showing  threat- 
ened injury  may  enjoin  when  au- 
thority to  fix  the  new  grade  has 
been  unlawfully  delegated  by  coun- 
cil to  city  engineer.  Lippleman  v. 
Cincinnati,  4  C.  C.  327. 

The  owner  of  an  unimproved  lot 
cannot  prevent  by  injunction  a 
change  of  grade  in  front  of  his  prop- 
erty, but  he  may  enjoin  the  taking 
of  a  portion  of  his  land  for  the 
construction  of  a  viaduct  where 
compensation  has  not  first  been 
paid.  Leonard  v.  Cassidy,  8  C.  C. 
529. 

The  construction  of  approaches  to 
a  county  bridge  which  will  change 
the  grade  in  front  of  plaintiff's  im- 
proved property  may  be  enjoined 
until  compensation  is  paid.  Gawn 
v.  Wilson,  7  N.  P.  33. 

Pleading,  practice  and  evi- 
dence.—  Municipality  is  bound  by 
its  plans  and  specifications  and  can- 
not show  by  its  officers  that  the 
proposed  improvement  will  be  made 
in  some  different  manner.  Martin 
v.  Bond  Hill,  7  C.  C.  271;  nor  can 
municipality  show  by  its  officers 
that  a  grade  will  be  established  ac- 
cording to  law  where  an  improve- 
ment is  proceeding  without  re- 
quired action  of  the  authorities. 
Feuerstein  v.  Jackson,  8  C.  C.  396, 
399. 

Damages  may  be  proven  by  tes- 
timony either  showing  the  value  of 
the  property  immediately  before 
and  immediately  after  the  improve- 
ment, or  showing  the  cost  of  ad- 
justing the  property  to  the  new 
grade  by  cutting  down,  filling,  re- 
storing or  repairing  buildings, 
fences,  etc.  But  opinion  of  wit- 
ness that  property  is  damaged  or 
stating  the  amount  of  the  damage 


212 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    54 


is  not  admissible.  R.  R.  Co.  v.  Ball, 
5  O.  S.  568. 

Testimony  tending  to  show  that 
property  will  be  benefited  by  the 
change  of  grade,  when  no  special 
or  local  benefit  different  from  that 
conferred  upon  other  property  abut- 
ting the  improvement  is  claimed, 
is  not  admissible.  Martin  v.  Bond 
Hill,  7  C.  C.  271;  R.  R.  Co.  v.  Gard- 
ner, 45  O.  S.  309,  323.  But  special 
benefits,  peculiar  to  the  particular 
property,  may  be  shown.  Lotze  v. 
Cincinnati,  61  O.  S.  272.  Property 
owner's  remedy,  if  no  damages  are 
allowed,  is  by  proceedings  in  error. 
See  §  57  of  the  Code;  and  see  also 
Frevert  v.  Finfrock,  31  O.  S.  621. 
He  cannot  enjoin  the  improvement. 
lb. 

Where  the  record  does  not  show 
what  the  answer  to  the  question 
would*  have  been,  an  exception  is 
not  properly  taken  to  a  refusal  of 
the  court  to  allow  witnesses  to  tes- 
tify to  the  reasonableness  or  un- 
reasonableness of  a  grade.  Cincin- 
nati v.  Weber,  23  C.  C.  651.  In  a 
suit  to  contest  an  assessment  plain- 
tiff cannot  show  damages  to  the 
property  assessed  as  set-off  against 
the  assessment.  Ulm  v.  Cincinnati, 
7  N.  P.  278;  Strauss  v.  City,  23  B. 
359.  But  in  a  suit  by  property 
owner  for  damages  for  change  of 
grade  municipality  may  offset  un- 
paid  assessment   for  such  improve- 


ment, though  such  assessment  could 
not  under  later  decisions  include  the 
damages  awarded.  Toledo  v.  Brey- 
man,  23  B.  242.  In  suit  by  tax- 
payer to  enjoin  a  change  of  grade 
on  ground  that  action  proposed  i 
unreasonable  and  an  abuse  of  cor 
porate  power  it  is  not  sufficient  to 
show  that  the  old  grade  had  been 
long  established  and  improved  to 
by  private  owners  and  public  au- 
thorities. Corry  v.  Cincinnati,  22 
B.   194. 

A  city  engineer's  book  levels  are 
not  admissible  to  show  a  grade  es- 
tablished by  ordinance,  but  may  be 
introduced  to  prove  levels  as  taken. 
Incl.  Plane  R.  R.  Co.  v.  Pfan,  9  B. 
200. 

A  petition  for  damages  for  change 
of  grade,  filed  after  the  change  is 
made,  and  not  alleging  that  the 
same  was  done  contrary  to  law,  is 
demurrable.  Kratochwill  v.  West 
Carrollton,    1   Dayton    35. 

Note. —  For  a  full  discussion  of 
the  principles  involved  in  change  of 
grade  cases,  including  the  right  of 
recovery  and  the  measure  of  dam- 
ages, see  article  in  10  Am.  Law 
Rec.  705,  by  Mr.  Frank  M.  Coppock. 
of  the  Cincinnati  bar. 

Other  causes  of  action. —  For 
cases  involving  injuries  to  property 
by  the  making  of  street  improve- 
ments, and  not  affected  by  this  sec- 
tion, see  notes  to  §  28  of  the  Code. 


FORM  OF  CLAIM  FOR  DAMAGES. 

• ,  19... 

To  the  Clerk  of  the  Council  of  the  City  [or  Village]  of , 

State  of  Ohio: 

The  undersigned  is  the  owner  of  the  following  described  property  in  the 

city    [or    village]    of :     (here    insert    general    description    of 

property) ,  bounding  and  abutting  upon street,  between 

and (state   termini  of  proposed   improvement). 

And  claims  that  said  property  will  be  damaged  in  the  sum  of 

dollars  by  the  proposed   improvement   of street   under   the  reso- 
lution passed  therefor  on  the day  of ,  19 


Code    §    55]        ASSESSMENTS.       DAMAGES    TO    PROPERTY.  213 

Sec.  55.  [Determination  of  council  to  proceed  with  improve- 
ment, and  time  for  inquiring  into  claims  for  damages.  ] 1     At  the 

expiration  of  the  time  limited  for  filing  claims  for  damages,  as 
provided  for  in  the  last  section,  the  council  shall  determine 
whether  it  will  proceed  with  the  proposed  improvement  or  not, 
and  whether  the  claims  for  damages  filed  as  aforesaid  shall  be 
judicially  inquired  into,  as  hereinafter  provided,  before  com- 
mencing, or  after  the  completion  2  of  the  proposed  improve- 
ment ;  and  if  it  decides  to  proceed  therewith,  an  ordinance  for 
the  purpose  shall  be  passed ;  3  said  ordinance  shall  set  forth 
specifically  the  lots  and  lands  to  be  assessed  for  the  improve- 
ments;4 shall  contain  a  statement  of  the  general  nature  of 
the  improvement  and  the  character  of  the  materials  which  may 
be  bid  upon  therefor;  of  the  mode  of  payment  therefor;  a 
reference  to  the  resolution  theretofore  passed  for  said  improve- 
ment, giving  the  date  of  its  passage  and  a  statement  of  the 
intention  of  council  to  proceed  therewith  in,  accordance  with 
said  resolution  and  in  accordance  with  the  plans,  specifications, 
estimates  and  profiles  provided  for  said  improvement.5 

[How  lots  and  lands  to  be  described.]  In  setting  forth 
specifically  the  lots  and  lands  abutting  upon  the  improvement 
and  to  be  assessed  therefor,  it  shall  be  sufficient  to  describe 
them  as  all  the  lots  and  lands  bounding  and  abutting  upon  said 
improvement  between  and  including  the  termini  of  the  im- 
provement, and  in  describing  those  which  do  not  so  abut  it  shall 
be  sufficient  to  describe  the  lots  by  their  appropriate  lot  num- 
bers, and  the  lands  by  metes  and  bounds ;  and  this  rule .  of 
description  shall  apply  in  all  proceedings  in  which  lots  or  lands 
are  to  be  charged  with  a  special  assessment.  [1904,  April  21, 
97  v.  122.] 

(1)  Old  section  2316  R.  S.  re-  damages  to  be  postponed  until  after 
pealed.  the  improvement  is  made  is  consti- 

(2)  Constitutionality.  —  The  tutional.  Toledo  v.  Preston,  50  O. 
provision  allowing  the  inquiry  into  S.  361. 


214                            the  ohio  municipal  code.  [Code  §  55 

(3)  Effect  of  ordinance  as  to  ordered  drains  and  culverts.  Schroe- 
binding  municipality,  see  Shehan  v.  der  v.  Overman,  18  C.  C.  385;  61 
Cincinnati,  25  B.  212    (aff'd,  27  B.  O.  B.  1. 

375 ),  and  see  Hays  v.  Cincinnati,  62  statement    in    an    ordinance   pro- 

/a     c    ie   •              *             •  viding  for  improvement  of  a  street, 

(4)  Sufficiency  of  description.  that  the  paving  shall  ^  asphalt, 
-Ordinance  need  not  fix  the  deptn  brick  Qr  ^her-  material  a/may 
of  lots  subdivided  Wilson  v.  Cm-  thereafter  be  determined,  meets  the 
cinnati,  5  N.  P.  68.  Ordinance  may  .  t  ,.  t  iU  ,.  , 
describe  lots  and  lands  by  referring  requirement  that  the  ordinance  shaii 
to  a  resolution  describing  them.    16.  contain  a  statement  of  the  general 

(5)  Requirements  of  ordi-  nature  of  the  improvement  and  the 
nance.— An  ordinance  not  specific-  character  of  the  materials  which 
ally  ordering  cost  to  be  assessed  on  m%** .bl(luP°n  *heref?I\  J™!1* 
abutting  property,  but  incorporating  v-  ^yria,  74  O.  b.— ,  (51  B.  189). 
by  reference  the  preceding  resolu-  The  intention  of  the  legislature 
tfon,  which  did  so  order  cost  to  be  was  to  require  council  to  designate, 
paid,  was  held  to  fulfill  the  require-  not  the  particular  material  with 
ments.  Cincinnati  v.  Goodman,  5  which  the  street  should  be  paved, 
Rec.  153.  but   to  state  the  general   character 

So  an  ordinance   not   mentioning  of  the  same.     Scott  v.  Hamilton,  7 

drains  and  culverts,  but  referring  to  C.  C.  (N.  S.)  493. 

the  resolution  which  did  provide  for  See  Code  §  60. 
them,  was  held  to  have  sufficiently 


FORM  OF  ORDINANCE  TO  PROCEED  WITH  THE  IMPROVEMENT. 
Ordinance  No 

Determining  to  proceed  with  the  improvement  of street,  from 

to ,  by  paving   [constructing  sewer  or  making  other 

improvement] . 

Be  it  ordained  by  the  council  of  the  city   [or  village]    of , 

State  of  Ohio,  three-fourths  of  all  members  elected  thereto  concurring: 

Sec.  1.  That  it  is  hereby  determined  to  proceed  with  the  improvement 
of street,  from to ,  by ( here  in- 
sert   general    nature    of    improvement   and    character    of   materials    to    be 

used),  in  accordance  with  Resolution  No ,  passed  on  the day  of 

,  19. .  . .,  and  in  accordance  with  the  plans,  specifications,  esti- 
mates and  profiles  heretofore  approved  and  now  on  file  in  the  office  of 
the  department  of  public  service   [or,  in  villages,  of  the  clerk]. 

Sec.  2.  That  all  claims  for  damages  resulting  therefrom  shall  be  ju- 
dicially inquired  into  before  commencing  [or  after  the  completion]  of  the 
proposed  improvement,  and  the  solicitor  [or  mayor]  be  and  he  is  hereby 
authorized  and  directed  to  institute  proceedings  in  a  court  of  competent 
jurisdiction  to  inquire  into  such  claims  (if  the  same  are  to  be  inquired 
into  before  commencing  the  improvement ) . 

Sec.  3.  (Here  repeat  mode  of  payment  for  the  improvement,  and 
whether  or  not  bonds  are  to  be  issued  in  anticipation  of  the  collection  of 
assessments,  as  determined  in  improvement  resolution.  See  form  under 
§  5i  of  the  Code.) 

Sec.  4.  That  the  folowing  lots  and  lands  shall  be  assessed  for  said 
improvement  as  above  determined:     All  the  lots  and  lands  bounding  and 

abutting  upon  said  improvement  on    street  between 

and (designating  specifically  the  termini  of  the  improvement) . 

[Or,  if  some  lots  or  lands  do  not  abut  upon  the  improvement,  such  lots 
may  be  described  by  their  appropriate  lot  numbers,  and  lands  by  metes 
and  bounds.] 

Sec.  5.  (In  cities.)  That  the  board  of  public  service  be  and  hereby  is 
authorized  and  directed  to  make  and  execute  a  contract  for  said  improve- 


Code    §    55]  ASSESSMENTS.       DAMAGES    TO    PROPERTY.  215 

ment  with  the  lowest  and  best  bidder  after  advertisement,  according  to 
law. 

Sec.  5.  (In  villages.)  That  the  clerk  be  and  he  is  hereby  authorized 
and  directed  to  advertise  for  bids  for  the  construction  of  said  improvement 
according  to  law. 

Sec.  6.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed ,  19 . . . 

Attest. 


Clerk.  President  of  Council 

(In  view  of  the  provisions  of  §  61  of  the  Code,  it  seems  advisable  that 
the  above  ordinance  should  be  passed  by  a  three-fourths  vote  of  council, 
though  this  is  not  explicitly  required,  as  in  case  of  resolution  of  necessity.) 


FORM  OF  ASSESSING  ORDINANCE. 
Ordinance   No 

To   levy    special    assessments    for    the    improvement    of street 

from to ,  by  ( here  describe  character  of  improvement. ) 

Be  it  ordained  by  the  council  of  the  city    [or  village]   of . ., 

State  of  Ohio: 

Sec.  1.     That  to  pay   the  portion  of   the  cost  and   expenses  heretofore 

determined   to    be    specially   assessed    for    the    improvement    of 

street,  from to ,  by  (here  describe  character  of  im- 
provement) there  be  levied  and  assessed  upon  the  lots  and  lands  hereinafter 
described,  the  several  amounts  herein  set  forth,  viz. : 

[or  in  assessments  by  benefits  upon  report  of  estimating  board:     "  Be  it 

ordained  by  the  council  of  the  city  [or  village]   of , 

State   of   Ohio:     Sec.    1.  That   the   assessment    of    the   cost   and   expenses 

of  improving street,  from 

to ,  by  "   (here  describe  character  of  improvement) , 

"  as  reported  to  council  on  the day  of ,  19 . .  . ,  by  the 

board  heretofore  appointed  to  estimate  said  assessment,  be  and  the  same  is 
hereby  adopted,  and  that  there  be  levied,"  etc.] 

[or  in  assessments  by  benefits  upon  report  of  equalising  board:     "Be  it 

ordained  by  the  council  of  the  city  [or  village]  of < ,  State  of  Ohio, 

two-thirds  of  all  members  concurring:     Sec.  1.  That  the  assessment  of  the 

cost   and    expenses    of    improving street,    from to , 

by"   (here  describe  character  of  improvement)   "as  reported  to  council  on 

the day   of ,   19.  .  .,  by  the  board   heretofore  appointed  to 

hear  all  objections  to,  and  to  equalize,  said  assessments,  be  and  the  same 
is  hereby  confirmed,  and  that  there  be  levied,"  etc.] 


216 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    55 


Owner. 


Description  of   property. 


Assessment. 
Dollars.  Cents. 


Which  assessments  are per  cent,  of  the  tax  value  of  the  property- 
assessed  [or,  " ' .  .dollars  and cents  per  front  foot  of  the 

property  assessed/'  or,  "  are  in  proportion  to  the  benefits  accruing  to  the 
property  assessed  "] . 

Sec.  2.     That  the  total  assessment  against  each  lot  shall  be  payable  in 

cash  within days  of  the  date  of  the  final  passage  of  this  ordinance, 

or  in annual  installments  with  interest  at  the  rate  of 

per  cent,  per  annum  upon  deferred  payments,  at  the  option  of  the  owner. 
All  cash  payments  shall  be  made  to  the  city  [or  village]  treasurer.  All 
installments  of  assessments  shall  be  certified  by  the  clerk  of  the  council 
to  the  county  auditor  on  or  before  the  second  Monday  in  September, 
annually,  to  be  by  him  placed  upon  the  tax  duplicate  and  collected  as  other 
taxes  are  collected. 

Sec.  3.  That  to  provide  a  fund  for  the  payment  of  the  portion  of  the 
cost  and  expense  for  which  the  special  assessments  herein  are  levied  for 

the  improvement  of street  as  aforesaid,  the  mayor  and  auditor 

[or  in  villages,  clerk]  be  and  they  are  hereby  authorized  to  issue  bonds  of 

the  city  [or  village]  of in  the  aggregate  sum  of dollars, 

payable    at ,    of    which    bonds, bond . .  in    the    sum    of 

dollars,  shall  be  payable  on  the day  of ,  19.  .  ., 

(here  insert  amount   to  be  received  and  date   when  first  installments  of 

assessments  will  be  received  by  the  city  or  village  treasurer)  and 

bond . .  in  the  total  sum  of dollars,  payable  one  year  after  said 

last  mentioned  date,  (and  so  on  in  accordance  with  the  number  of  install- 
ments or  assessments)  with  interest  on  said  bonds  at  the  rate  of 

per  cent,  per  annum,  payable  annually  (or  otherwise),  said  bonds  to  be 
signed  by  the  aforesaid  officers,  and  sold  by  them  as  provided  by  law, 
and  the  proceeds  thereof  shall  be  applied  to  the  payment  of  the  cost  and 
expense  of  said  improvement  as  aforesaid,  and  to  no  other  purpose  what- 
soever; and  for  the  payment  of  the  said  bonds,  and  the  interest  thereon, 
the  revenue  and  faith  and  all  the  real  and  personal  property  of  the  city 
[or  village]  are  hereby  pledged;  provided,  that  if  within  the  time  above 
specified  and  before  the  sale  of  the  said  bonds  any  of  the  owners  of  said 
property  shall  pay  their  total  assessments  in  cash,  the  aggregate  sum  in 
bonds  to  be  issued  shall  be  reduced  by  deducting  the  amount  so  paid  in  cash 
from  the  total  amount  of  the  fund  to  be  provided,  and  the  bonds  issued 
shall  be  severally  reduced  in  amounts  proportionately. 

Sec.  4.     That  upon  the  sale  of  said  bonds  the  proceeds  thereof,  together 


Code    §    56]      ASSESSMENTS.       DAMAGES    TO    PROPERTY.  217 

with  the  moneys  received,  if  any,  from  the  cash  payments  of  assessments, 
shall  be  placed  in  the  city  [or  village]  treasury,  and  disbursed  upon  proper 
vouchers  in  payment  of  the  cost  and  expense  of  the  improvement  aforesaid. 

Sec.  5.  That  the  said  annual  assessments,  and  all  portions  thereof, 
shall  be  applied  to  the  payment  of  said  bonds  and  the  interest  thereon  as 
the  same  shall  become  due,  and  to  no  other  purpose  whatsoever. 

Sec.  6.  That  this  ordinance  shall  take  effect  and  be  in  force  from  ana 
after  the  earliest  period  allowed  by  law. 

Passed ,   19 . . . 

Attest : 


Clerk.  

President  of  Council. 
Note. —  Bonds  in  anticipation  of  the  collection  of  assessments  must  be 
issued  and  sold  in  the  manner  provided  in  §§  95,  96  and  97  of  the  Code. 
When  sold  to  the  sinking  fund  trustees,  a  single  manuscript  bond  for  the 
entire  amount  of  deferred  installments  of  assessments  may  be  issued,  and 
such  installments  and  interest,  as  received,  applied  thereon.  §  94  of  the 
Code  requires  that  such  installments  shall  be  certified  by  the  clerk  of 
council  to  the  county  auditor  annually  and  collected  as  other  taxes.  In 
cities,  this  may  be  done  by  the  city  auditor  delivering  a  record  of  such 
installments  to  the  clerk  of  council  and  the  latter  certifying  them  to  the 
county  auditor. 

Sec.  56.  [Assessment  of  damages.]1  When  claims  for  dam- 
ages are  filed  within  the  time  limited,  and  the  council,  having 
passed  an  ordinance  for  making  the  improvement,  determines 
that  the  damages  shall  be  assessed  before  commencing  it,  the 
mayor  or  solicitor  shall  make  a  written  application  for  a  jury, 
to  the  Court  of  Common  Pleas,  or  a  judge  thereof  in  vacation, 
or  to  the  Probate  Court  2  of  the  county  in  which  the  corpora- 
tion, or  the  larger  part  of  it,  is  situated;  and  the  court  or 
judge  shall  direct  the  summoning  of  a  jury,  in  the  manner 
provided  for  the  appropriation  of  property,3  and  fix  the  time 
and  place  for  the  inquiry,  and  the  assessment  of  such  dam- 
ages, which  inquiry  and  assessment  shall  be  confined  to  the 
claims  as  aforesaid.4 

(1)  Old  section  2317  R.  S.,  re-  diction  to  inquire  by  jury  into 
pealed,  claims  for  damages.    Toledo  v.  Pres- 

(2)  Jurisdiction      of      Probate      ton,  50  O.  S.   361. 

Court.— No  constitutional  objection  (3)    Procedure.— See    note     (3) 

to  conferring  on  probate  court  juris-       to  §  15  of  the  Code.,  page  91. 


218 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    56 


See  further  as  to  proceedings  of 
jury,  §  2318  R.  S.,  re-enaeted  in  § 
94  of  the  Code,  infra. 

As  to  assessment  of  damages  after 
completion  of  improvement,  see  § 
2321  R.  S.,  re-enacted  in  §  94  of 
the  Code,  infra. 

(4)  Damages  assessed  before 
commencing  improvement  must 
be  paid  to  property  owner  before 
work  is  begun  in  front  of  his  prop- 
erty, Ryan  v.  Cincinnati,  1  C.  C. 
558;  interest  must  be  paid  on 
amount  if  compensation  is  deferred, 
Cincinnati  v.  Williams,  9  B.  243; 
and  where  the  owner  sues  for  dam- 
ages the  corporation  having  failed 
to  have  damages  assessed,  owner  is 
entitled  to  interest  from  the  time 
the  work  was  begun,  Cincinnati  v. 
Whetstone,  47  O.  8.   196. 

Failure  to  pay  award. —  Where 


municipality  fails  to  pay  award  of 
damages  and  to  enter  upon  improve- 
ment it  shall  be  held  to  have  aban- 
doned the  improvement  and  prop- 
erty owners  who  were  defendants  in 
the  action  to  assess  damages  may 
have  costs  and  attorney  fees  al- 
lowed as  in  case  where  city  fans 
to  pay  for  or  take  possession  of 
property  after  appropriation  pro- 
ceedings. Toledo  v.  Jacobson,  11  C. 
C.  220  (dismissed,  38  B.  248). 

Estoppel  to  deny  filing  of 
claim. —  Where  municipality  has 
made  a  property  owner  defendant 
in  an  action  to  assess  damages  and 
submitted  his  claim  to  a  jury,  it 
cannot  defeat  his  recovery  by  show- 
ing that  he  did  not  file  his  claim 
in  time.  Cincinnati  v.  Sherike,  47 
O.  S.  217. 


FORM  OF  APPLICATION  TO  ASSESS   DAMAGES. 


Court, County,  Ohio.-, 

The  City  [or  Village]  of 


Plaintiff, 


Application  to  assess  damages. 


(Here  insert  names  of  all  persons  who 

have  filed  claims  within  time  required 

by  law), 

Defendants. 

Now  comes  the  city  [or  village]  of .  .  . and  represents  that  it  is  a 

city  [or  village]  under  the  laws  of  Ohio,  and  that  its  council  by  resolution 

duly    passed    on   the day   of ,    19 ... ,    declared   it   to   be 

necessary   to    improve street,    from to ,    by 

(here  describe  nature  of  proposed  improvement). 

And  that  notice  oi  the  passage  of  said  resolution  was  given  according  to 
law,  to  all  persons  whose  property  is  to  be  assessed  to  pay  any  portion  of 
the  cost  of  said  improvement. 

Plaintiff  further  represents  that  on  the day  of ,  19.  .  ., 

its  council  determined  by  ordinance  duly  passed  to  proceed  with  the  pro- 
posed improvement  and  that  claims  for  damages  should  be  judicially  in- 
quired into,  before  commencing  said  improvement  and  directed  the  solicitor 
[or  mayor]  to  make  this  application. 


Code    §    56]  ASSESSMENTS.       DAMAGES    TO    PROPERTY.  219 

Plaintiff  further  represents  that  the  following  named  persons,  defendants 
herein,  filed  claims  in  writing,  on  the  dates  hereinafter  shown,  with  the 
clerk  of  council,  setting  forth  the  damages  claimed  to  be  sustained  by  rea- 
son of  said  improvement,  as  follows: 

1 ,  claiming  to  be  the  owner   of (here  describe 

property  as  set  forth  in  claim  for  damages),  filed  a  claim  on  the 

day  of ,    19...,   as   follows:    (here   insert  claim). 

2 ,   etc.,    etc. 

Wherefore,  plaintiff  asks  the  court  to  cause  a  jury  to  be  impaneled  to 
make  inquiry  into  and  assess  the  damages,  if  any,  which  will  be  sustained 
by  defendants'  lots  and  lands,  by  reason  of  the  proposed  improvement,  as 
provided  in  said  resolution  and  ordinances. 


Solicitor   [or  Mayor]. 
(No  verification  required.) 

PRECIPE. 

To  the  Clerk: 

Issue   notice   to  the    defendants    named   in   the   above   application   that 

plaintiff  will,  on  the day  of ,  19. .  .,  at. .  .  .M.,  apply  to  the 

Honorable ,  judge  of  the Court  of 

county,  for  the  impaneling  of  a  jury  to  make  inquiry  into  and  assess,  the 

damages,  if  any,   to  be  paid  by  the  city   [or  village]   of to  the 

persons  having  filed  claims  therefor  according  to  law,  under  the  ordinance 

to  improve street,  from to ,  passed  on  the 

day  of ,  19.... 


Solicitor  [or  Mayor]. 

FORM  OF  VERDICT. 
The  City  [or  Village]  of  i 

Plaintiff, 
v.  \   Verdict- 

(Here  insert  names  of  all  property  own- 
ers parties  to  the  proceeding). 

Defendants. 

We,  the  jury  in  this  cause,  duly  impaneled  and  sworn,  do  assess  to  the 
several  parties  defendant  herein,  as  the  actual  damages  which  will  be  sus- 
tained by  their  lots  and  lands,  as  set  forth  in  the  application  herein,  by 
reason  of  the  improvement  of street,  as  provided  in  the  resolu- 
tion and  ordinances  described  in  said  application  as  follows: 

1.  To the  sum  of dollars. 

2.  To the  sum  of dollars. 

Etc.,   etc. 

[Signed  by  all  jurors.] 


220  the  ohio  municipal  code.    [Code  §§  57,  58 

FORM  OF  JUDGMENT. 

The  City  [or  Village]  of 

' ...... 

Plaintiff, 


v. 
(Here  insert  names  as  in  form  of  ver- 
dict), 

Defendants. 


Judgment. 


This  cause  coming  on  to  be  heard  upon  the  verdict  of  the  jury  heretofore 
rendered,  assessing  to  the  several  parties  defendant  herein,  as  the  actual 
damages  which  will  be  sustained  by  their  lots  and  lands  by  the  improve- 
ment of street,  as  provided  in  the   resolution   and    ordinance 

described  in  the  application  herein,  as  follows: 

1.  To the  sum  of dollars. 

2.  To the   sum    of dollars. 

Etc.,  etc.     (Repeat  names  and  amounts  shown  in  verdict.) 
It   is    considered   and   adjudged   by   the   court  that   the   several    parties 
defendant  aforesaid   recover  of  the  plaintiff  herein,  the   city   [or  village] 

of ,    at    or   before    the    commencement   of   said    improvement   in 

front  of  their  said  lots  and  lands,  the  sums  of  money  severally  assessed  to 
them  in  said  verdict,  as  above  set  forth,  and  that  the  plaintiff  pay  the 
costs  of  this  proceeding,  taxed  at dollars. 

Sec.  57.  [Prosecution  of  error.]  The  provisions  of  section 
21  of  this  act  shall  apply  to  the  municipal  corporation,  or  the 
owners  of  any  property  who  may  desire  to  prosecute  error  as 
in  other  cases.1 

(1)  See  notes  to  ?  21  of  the  Code,  page  100. 

Sec.  58.  [Costs  of  inquiry.]1  In  cases  where  the  jury  finds 
no  damages,  the  costs  of  the  inquiry  shall  be  taxed  against  the 
claimant,  and  collected  on  execution,  and  in  all  other  cases 
the  costs  2  shall  be  paid  by  the  corporation. 

(1)  Old  section  2320  R.  S.,  re-  torney's  fees.  Toledo  v.  Jacobson, 
pealed.  11    C.  C.   220. 

(2)  On   failure   to   pay   award  Owner    not    allowed    damages 

or  take  possession  within  six  cannot  enjoin  improvement.  He 
months,  the  costs  which  must  be  must  seek  his  remedy  by  error  pro- 
paid  to  property  owner,  include  at-  ceedings.       Frevert  v.   Finfrock,  31 

O.  S.  621. 


Code  §§   59  60]        assessments,  contracts,  petitions.    221 

(c)  Improvement  Contracts. 
Sec.  59.  [How  contract  to  be  let.]1  The  contract  for  any 
such  improvement  shall  be  let  under  the  provisions  of  sections 
143  and  144  of  this  act,  and  in  case  all  bids  be  rejected  the 
directors  of  public  service  in  cities  and  the  council  in  villages 
may  order  a  re-advertisement  for  bids.2 

( 1 )  Old  *  section. —  See  old  §  taxpayers  and  is  peremptory  and 
2303  R.  S.,  repealed,  for  former  pro-  without  it  contract  and  assessment 
vision  as  to  contracts  for  improve-  are  invalid.  Upington  v.  Oviatt,  24 
ments.  O.  S.  232. 

(2)  Advertisement  for  bids. —  As  to  what  defects  in  advertising 
An  advertisement  for  bids  which  are  covered  by  a  curative  act  curing 
gave  no  information  about  the  work  technical  irregularities,  see  Wilder 
except  by  referring  to  plans  and  v.  Cincinnati,  26  O.  S.  284,  285; 
specifications,  which  were  not  made  Cincinnati  v.  Goodman,  5  Rec.  153; 
till  within  less  than  time  required  Burgett  v.  Norris,  25  O.  S.  308 ;  Tay- 
for  advertising  before  making  bids,  lor  v.  Wapakoneta,  26  C.  C.  285. 
was  held  not  valid.  Steese  v.  Ovi-  Forms. —  For  forms  of  advertise- 
att,  24  O.  S.  248,  252.  ment,    bid,    etc.,    in   letting   of    con- 

The  requirement  of  proper  adver-      tracts,  see  §  143  of  the  Code, 
tisement  is  designed  to  protect  the 

Sec.  60.  [When  certain  assessments  shall  be  deemed  valid  and 
binding.]  This  act  shall  be  subject  to  the  provisions  of  section 
211  of  the  act  of  which  this  is  amendatory. 

In  any  case  in  which  special  assessments  have  been,  or  may 
hereafter  be  made,  upon  property  for  the  construction  of  any 
improvement,  and  several  kinds  of  material  have  been  named 
in  the  ordinance,  or  ordinances,  providing  for  the  same,  and 
on  which  bids  have  been  received  for  the  construction  of  said 
improvements  with  any  or  all  of  said  materials,  said  assess- 
ments shall  be  valid  and  binding  assessments  upon  the  property 
so  assessed.  In  the  case  of  construction  of  sewers  hereafter, 
excepting  main  or  district  sewers,  notice  of  the  passage  of  the 
resolution  therefor,  as  provided  in  section  84  of  the  act  of 
which  this  is  amendatory  shall  be  made  in  the  manner  pro- 
vided in  section  52  of  said  act  as  amended  herein.  [1904,  April 
21,  97  v.  123.] 


222 


THE    OHIO    MUNICIPAL    CODE.  [Cod^    §    61 

(d)  Improvements  on  Petition. 


Sec.  61.  [When  council  authorized  to  proceed  with  improve- 
ment without  concurrence  of  three-fourths  of  council.]1  No  pUt> 
lie  improvement,  the  cost  or  part  of  cost  of  which  is  to  be 
specially  assessed  on  the  owners  of  property,  shall  be  made 
without  the  concurrence  of  three-fourths  of  the  whole  number 
of  the  members  elected  to  council,  unless  the  owners  of  a  ma- 
jority of  the  foot  frontage  to  be  assessed,  petition  in  writing 
therefor,  in  which  event  the  council  shall  be  authorized  (a  ma- 
jority of  the  whole  number  elected  thereto  concurring),  to  pro- 
ceed with  the  improvement  in  the  manner  herein  provided.2 


(1)  Old  section  2267  R.  S.  (re- 
pealed.)  §  2267,  amended,  95  O. 
L.  35   (repealed.) 

(2)  How  majority  determined. 

—  For  cases  as  to  determining  the 
majority  in  petitions  for  highway 
improvements,  see  Burgett  v.  Nor- 
ris,  25  O.  S.  308;  Campbell  v.  Park, 
32  O.  S.  544;  Parker  v.  Burgett,  29 
O.  S.  513. 

The  owner  of  a  corner  lot  sign- 
ing for  the  full  length  of  his  side- 
wise  frontage  will  not  be  counted 
for  that  frontage  as  against  his  co- 
petitioners  in  determining  the  ma- 
jority, although  he  himself  may  be 
estopped.  Andrew  v.  Auditor,  5  N. 
P.    123. 

A  city  cannot  be  counted  as  a  pe- 
titioner because  of  the  fact  that  an 
ordinance  for  the  improvement  has 
been  passed.  Tone  v.  Columbus,  1 
C.  C.  305. 

Verbal  declaration  in  favor 
of  improvement  will  not  be  equiva- 
lent to  signing  petition.  Tone  v. 
Columbus,   1  C.  C.  305. 

Collateral  attack.— The  finding 
that  the  requisite  number  petitioned 
for    the    improvement    is  not   con- 


clusive of  the  fact.  Corry  v.  Gay- 
nor,  22  O.  S.  584;  Stephan  v. 
Daniels,  27  O.  S.  527;  Hayes  v. 
Jones,  27  0.  S.  218;  Lima  v.  Mc- 
Bride,  34  O.  S-.  338;  Anderson  v. 
Commissioners,  12  O.  S.  635. 

Names  on  separate  papers. — 
Though  the  names  are  signed  on 
separate  papers,  yet  if  together  they 
constitute  the  requisite  majority, 
the  petition  will  be  sufficient,  Bra- 
den  v.  Commissioners,  31  O.  S.  386 ; 
and  petitioners  for  the  same  im- 
provement signing  on  another  paper 
but  asking  to  be  counted  as  petition- 
ers will  be  so  counted,  Commis- 
sioners v.  Young,  36  O.  S.  288; 
where  two  petitions  ask  for  prac- 
tically the  same  improvement  they 
will  be  counted  together  to  make 
up  the  requisite  number,  Wame- 
link  v.  Cleveland,  40  O.  S.  381;  but 
those  who  signed  the  petition  seek- 
ing a  different  kind  of  improve- 
ment, which  has  been  abandoned, 
cannot  be  added  to  a  new  petition  to 
make  up  the  required  majority, 
Makemson  v.  Kauffman,  35  O.  S. 
444;  signers  to  a  petition  which 
was  rejected  because  deemed  infor- 


Code    §    61]     ASSESSMENTS.     IMPBOVEMENTS  ON  PETITION.      223 


mal,  but  where  the  names  were  not 
withdrawn  or  revoked,  and  the  pe- 
tition remained  on  file  may  be 
added  to  the  signers  on  a  second  pe- 
tition to  make  up  the  majority, 
Campbell  v.  Park,  32  O.  S.  544. 

Defect  in  petitions. —  The  fact 
that  one  of  the  petitions  was  not 
properly  recorded  or  acted  upon  will 
not  affect  the  question  of  determin- 
ing the  majority  of  signatures, 
Braden  v.  Commissioners,  31  0.  S. 
386;  Campbell  v.  Park,  32  O.  S. 
544;  nor  will  the  fact  that  the  pe? 
tition  has  been  addressed  to  the 
wrong  board.  It  will  be  deemed  ad- 
dressed to  the  body  in  charge  of 
such  matters.  Ryan  v.  Cincinnati, 
21   B.   62. 

Authority  to  sign. —  General 
manager  and  secretary  of  a  corpora- 
tion in  the  absence  of  express  au- 
thority appearing,  are  not  author- 
ized to  sign  such  a  petition,  Minor 
v.  Board,  20  C.  C.  4;  the  school 
board  may  sign  for  property  under 
its  control,  Becker  v.  Columbus,  18 
C.  C.  888;  the  signature  of  a  widow 
ratified  by  all  the  children  was  heW. 
valid,  Corry  v.  Cincinnati,  6  N.  P. 
325;  one  entitled  to  dower  in  the 
property,  but  signing  before  as- 
signment of  dower  cannot  be  count- 
ed as  signer,  Corry  v.  Gaynor,  22 
O.  S.  584,  594;  tenants  in  common 
signing  are  to  be  separately  counted 
as  owners  in  severalty,  Makemson 
v.  Kauffman,  35  O.  S.  444;  owners 
of  undivided  interest  may  be  count- 
ed for  their  proportion  although  all 
owners  did  not  sign,  Tone  v.  Co- 
lumbus, 1  C.  C.  305,  308;  lessee 
holding  under  perpetual  lease  with 
privilege  of  purchase  may  be  count- 
ed as  owner,  Laird  v.  Cincinnati 
5  B.  903;  Herman  v.  Columbus,  15 
Dec.  509;  Clemmer  v.  Cincinnati,  28 
C.  C.  89;  7  C.  C.(N.  S.)31;  so  of  an 
owner  conveying  the  fee  to  secure  a 
loan  and  having  a  lease  back  with 
privilege  of  purchase,  lb. ;  so  of  an 
agent  signing  his  own  name  for  his 
principal,  Columbus  v.  Sohl,  44  O.  S. 


479;  those  signing  because  induced 
to  do  so  by  certain  promises  of  oth- 
ers may  be  counted.  Makemson  v. 
Kauffman,  35  O.  8.  444;  life  tenant 
may  bind  the  property.  Herman  v. 
Columbus,  15  Dec.  509;  3  N.  P.  (N. 
S.)  216. 

Time  of  ownership. — Only  those 
signers  can  be  counted  who  owned 
the  property  and  signed  before  the 
ordinance  was  passed.  Tone  v. 
Columbus,  1  C.  C.  305,  310;  Her- 
man v.  Columbus,  15  Dec.  509;  3 
N.  P.  (N.  B.)  216. 

Withdrawal. —  Signers  may  with- 
draw their  names  at  any  time  be- 
fore the  improvement  is  ordered. 
Hayes  v.  Jones,  27  O.  S.  218;  Mc- 
Gonnigle  v.  Arthur,  27  O.  S.  251. 
But  tne  withdrawal  or  remon- 
strance after  a  city  has  started  with 
the  work  and  has  no  longer  author- 
ity ^o  stop,  is  not  permissible.  Co- 
lumbus v.   Slyh,  44   O.    S.  484. 

Where  petitioner  died  before  final 
order  to  make  the  improvement, 
this  will  not  constitute  a  with- 
drawal unless  his  successor  in  title 
withdraws  the  name.  Makemson  v. 
Kauffman,  35  O.  S.  444. 

Change  of  plan.— Where  an  im- 
provement is  justified  by  petition 
only  it  will  not  be  valid  if  the  mu- 
nicipal authorities  have  changed  the 
work  from  that  petitioned  for,  such 
as  by  lengthening  or  decreasing  the 
part  of  the  street  which  the  petition 
sought  to  have  improved.  Minor 
v.  Board,  20  C.  C.  4. 

A  wholly  different  improvement 
from  that  ordered  may  be  effected 
as  well  by  subtracting  from  as  by 
adding  to  it,  and  stopping  the  work 
before  completion  would  result  in 
an  improvement  which  would  fail 
to  accomplish  the  purpose  intend- 
ed by  the  improvement  as  asked  for. 
Cincinnati  v.  Avenue  Co.,  26  O.  S. 
345. 

Burden  of  proof. —  The  burden  of 
proof  is  on  those  denying  that  a 
petition  was  properly  signed  and 
contained  a  majority.  Tone  v.  Co- 
lumbus, 1  C.  C.  305,  39  O.  S.  281. 


224 


THE   OHIO   MUNICIPAL   CODE. 


[Code  §61 


Estoppel  by  signing  petition. 

— Petitioners  for  an  improvement 
would  ordinarily  be  estopped  from 
claiming  that  the  assessment  ex- 
ceeded the  benefits,  or  that  the  law 
under  which  the  assessment  was 
made  was  unconstitutional.  Murphy 
v.  Sims,  27  C.  0.  825;  7  C.  C.  (1.. 
S.)  193;  see  also  Birdseye  v.  Clyde, 
61  ©.  S.  27;  but  see  Borger  v.  Co- 
lumbus, 27  C.  C.  8l2;  6  C.  C.  (N. 
S.)  401;  Richter  v.  Norwood,  11 
Dec.  801;  Hiidebrand  v.  Toledo,  27 
C.  C.  427;  6  C.  C.  (N.  S.)  450; 
Shepard  v.  Barron,  14  O.  F.  D.  417. 

The  question  whether  such  peti- 
tioners are  estopped  to  dispute  the 
validity  of  the  proceeding  depends 
generally  upon  the  question  of  the 
construction  of  their  petition.  Hen- 
drickson  v.  Toledo,  23  C.  C.  256;  3 
C.  C.   (N.  8.)   355. 

If  the  petition  does  not  agree  that 
the  signers  shall  be  assessed  cer- 
tain expenses  that  they  might  have 
a  right  to  contest  if  they  did  not 
so  agree,  and  if  they  are  signing 
under  the  belief  that  council  is  to 
proceed  under  valid  laws,  they  are 
not  estopped  to  dispute  the  legality 
of  the  proceedings  or  to  contest  an 
invalid  assessment.  McGlynn  v.  To- 
ledo, 22  C.  C.  34.  (Aff'd,  47  B. 
712.) 


But  where  the  property  owners 
in  a  petition  expressly  agree  that 
all  the  cost  of  the  improvement  may 
be  assessed  upon  them  they  are  es- 
topped from  denying  the  validity  of 
the  assessment  even  though  the  as- 
sessment is  otherwise  invalid  as  be- 
ing, for  example,  for  the  cost  of 
lands  condemned.  Hendrickson  v.  To- 
ledo, 23  C.  C.  256;  3  C.  C.  (N.  S.) 
355. 

No  estoppel  arises  from  signing 
petition,  which  is  referred  back  to 
property  owners  to  file  a  new  peti- 
tion, and  signer  does  not  join  in 
new  petition.  Carlisle  v.  Cincinnati, 
8  C.  C.  (N.  S.)  46. 

See  further  as  to  estoppel  same 
subject  under   §  62,  infra. 

When  petition  not  necessary. 
— When  the  requisite  three-fourths 
of  council  concur  in  the  resolution, 
etc.,  the  petition  of  abutting  prop- 
erty owners  is  not  necessary.  Jess- 
ings  v.  Columbus,  1  C.  C.  90. 

Resolution  awarding  contract. 
— Resolution  awarding  a  contract 
for  the  improvement  is  not  within 
the  requirement  as  to  vote  of  coun- 
cil given.  Cincinnati  v.  Bickett,  20 
O.  S.  49;  see  also  Cincinnati  v.  Ave- 
nue Co.,  26  O.  S.  345. 


FORM  OF  PETITION  BY  MAJORITY  OWNERS. 


,    19... 

To  the  Council  of  the  City  [or  Village]  of ,  State  of  Ohio: 

We,    the   undersigned,    owners   of   the   number   of   feet   of   property  set 
opposite  our  names  below,  the  same  being  a  majority  of  the  foot  frontage 

on street,   between and ( here    insert  termini 

of  proposed  improvement),  hereby  respectfully  petition  your  honorable 
board  to  pass  the  necessary  legislation  therefor  and  to  improve  said 
street  between  the  points  aforesaid  by  (here  describe  character  of  im- 
provement desired)  and  that  so  much  of  the  entire  cost  and  expense  thereof 
as  may  be  lawfully  assessed  upon  the  adjacent,  contiguous  or  other 
specially  benefited  lots  and  lands,  be  assessed  by  a  percentage  of  the  tax 
value  thereof  [or  "  by  the  front  foot,"  or  "  in  proportion  to  the  benefits 
that  will  result  from  said  improvement "]  upon  the  lots  and  lands  bounding 

and  abutting  on  said street  between  the  points  aforesaid,  said 

assessments  to  be  paid   in annual    installments   or   in    cash,  at  the 

option  of  the  owner  of  property  assessed,  in  the  manner  provided  by  law 
for  the  levy  and  collection  of  assessments: 


Code    §    61]     ASSESSMENTS.     IMPROVEMENTS  ON   PETITION.     225 


Note. — The  petition  may  be  made  by  the  owners  of  a  majority  of  the 
foot  frontage  of  property  in  any  territory  or  district  that  may  be  assessed 
for  the  improvement. 

The  petition  need  not  propose  any  method  of  assessment,  but  it  would 
seem  that  it  may  do  so. 

FORMS    OF   RESOLUTION  *  AND   ORDINANCES    AFTER    MAJORITY 

PETITION. 

1. 

RESOLUTION    OF    NECESSITY. 

Resolution 

Declaring  it  necessary    to   improve street,   between 

and ,   by    ( here    describe    character    of    improvement   petitioned 

for). 

Whereas,  the  owners  of  a  majority  of  the  foot  frontage  of  property  on 

street,  between and ( here  insert  termini  of 

proposed  improvement),  have  petitioned  in  writing  for  the  improvement 
of  said  street,  between  the  points  named,  by  (here  describe  character  of 
improvement  petitioned  for ) ,  now  therefore, 

Be   it  resolved   by   the  council   of   the  city    [or  village]    of 

State  of  Ohio,  Sec.  1.  That  it  is  necessary  to  improve,  etc.,  (from  here 
follow  form  of  resolution  under  §  51  of  the  Code,  making  method  of  assess- 
ment conform  to  that  petitioned  for,  if  any  method  is  requested  in  petition. ) 

2. 

ORDINANCE     TO     PROCEED     WITH     IMPROVEMENT. 


Ordinance   No, 


Determining  to  proceed  with  the  improvement  of street,  from 

to ,  by  (here  state  nature  of  improvement) . 

Be  it  ordained  by   the   council   of  the  city    [or  village]    of , 

State    of   Ohio: 

Sec.  1.     That  it  is  hereby  determined  to  proceed  with  the  improvement 

of street,    from to ,   by    (here   insert   nature 

of  improvement  and  character  of  materials  to  be  used)  in  accordance 
with  a  resolution   passed   on  the day  of ,  19...,  and  the 


226  the  ohio  municipal  code.  [Code  §   62 

petition  of  property  owners  described  in  said  resolution,  and  in  accordance 
with  the  plans,  specifications,  etc.,  (from  here  follow  form  of  ordinance  to 
proceed  under  §  55  of  the  Code,  making  method  of  assessment  conform  to 
that,  if  any,  petitioned  for ) . 

3 

ASSESSING    ORDINANCE. 

(Follow  form  given  under  §  55  of  the  Code,  making  method  of  assess- 
ment conform  as  above.) 

Sec.  62.  [Improvement  on  petition  of  owners  of  abutting  prop- 
erty.]1 In  cities  or  villages  when  a  petition  subscribed  by 
three-fourths  in  interest  of  the  owners  of  property  abutting 
upon  any  street  or  highway  of  any  description  between  desig- 
nated points,  is  regularly  presented  to  the  council  for  the 
purpose,  the  entire  cost  of  any  improvement  of  such  street  or 
highway,  without  reference  to  the  value  of  the  lands  of  those 
who  subscribed  said  petition,  may  be  assessed  and  collected  in 
equal  annual  installments,  proportioned  to  the  whole  assess- 
ment, in  a  manner  to  be  indicated  in  the  petition  or  if  not  so 
indicated,  then  in  the  manner  which  may  be  fixed  by  the 
council;  and  the  interest  on  any  bonds  issued  by  the  corpo- 
ration, together  with  the  annual  installments  herein  provided 
for,  and  the  costs  of  such  proceedings  and  assessments  shall 
be  assessed  upon  the  property  so  improved;  but  when  the  lot 
or  land  of  one  who  did  not  subscribe  the  petition  is  assessed, 
such  assessment  shall  not  exceed  thirty-three  per  cent,  of  the  tax 
value  of  his  lot  or  land ;  provided,  that  the  guardian  of  infants 
or  insane  persons  may  sign  such  petition  on  behalf  of  their 
wards  only  when  expressly  authorized  by  the  Probate  Court  on 
good  cause  shown.2 

(1)  Old  sections  2272  and  2305  Mocker  v.  Cincinnati,  5  N.  P.  242. 
R.  S.,  repealed.  See   also   Andrew  v.   Auditor,   5  N. 

(2)  Three=fo*«rths    how   deter-      P.  123. 

mined. —  Three-fourths    in    interest  Separate  petitions. —  When  there 

is  determined  by  the  abutting  feet  are  separate  petitions  asking  for 
and    not    by     the     feet    assessable.       practically    the    same    improvement 


Code    §    62]    ASSESSMENTS.    IMPROVEMENTS  ON  PETITION.        22? 


they  may  be  counted  together  to 
make  the  required  three-fourths. 
Wamelink  v.  Cleveland,  40  O.  S. 
381,  386.  As  to  what  is  practically 
the  same  improvement,  see  Wame- 
link v.  Cleveland,  40  O.  S.  381. 

Conditional  signing. —  As  tc  ef- 
fect of  signature  made  on  condi- 
tion that  another  should  pay  the  as- 
sessment and  the  condition  not  be- 
ing fulfilled,  see  Mills  v.  Norwood, 
38  B.  249. 

The  fact  that  a  petition  by  three- 
fourths  of  property  owners  was  en- 
dorsed "  filed  until  signers  agree  to 
pay  any  deficiency "  will  not  pre- 
vent its  binding  the  signers.  Bush 
v.  Cincinnati,  18  C.  C.  605. 

Authority  to  sign. —  The  lessee 
of  a  perpetual  lease  may  sign 
and  bind  his  property  to  an 
unlimited  assessment.  St.  Ber- 
nard v.  Kemper,  60  O.  S.  244. 
So  may  a  trustee  with  power  to  dis- 
pose of  property.  Andrew  v.  Audi- 
tor, 5  N.  P.  123.  But  a  surviving 
partner  may  not  sign  such  a  peti- 
tion. Andrew  v.  Auditor.  lb.  Nor 
general  manager  and  secretary  of  a 
corporation  without  express  author- 
ity. Minor  v.  Board,  20  C.  C.  4. 
See  further,  notes  under  this  head- 
ing §  61,  supra. 

Withdrawal      of     names. —  See 

note  this  heading  under  §  61,  supra. 

When  less  than  three=fourths 
sign  —  Generally. —  A  petit  ion 
signed  by  less  than  three-foui  ths 
in  interest  not  having  been  acted 
upon  was  held  not  to  be  good  under 
a  subsequent  change  of  the  law  by 
which  a  less  number  of  signers  was 
made  sufficient.  Hays  v.  Cincin- 
nati, 62  O.  S.  116. 

Where  a  petition  is  signed  by  less 
than  three-fourths  and  the  signers 
guarantee  the  city  against  deficien- 
cy in  collection  from  non-signers 
such    a    petition    is    conditioned   on 


three-fourths  signing,  and  signers 
are  not  to  be  subjected  to  the  ex- 
tra liability  if  improvement  is  made 
without  the  necessary  signatures. 
Goodall  v.  City,  5  N.  P.  428 ;  Whip- 
ple v.  Toledo,  7  C.  C.   (N.  S.)   520. 

ihe  fact  that  the  petition  was 
not  signed  by  the  requisite  three- 
fourths  will  not  give  one  that  did 
sign  the  right  to  enjoin  the  as- 
sessment or  obtain  damages.  Far- 
rell  v.  Cincinnati,  12  C.  D.  724. 

Estoppel    to    deny    frontage. — 

Petitioner  stating  in  the  petition 
the  number  of  feet  front  of  his  prop- 
erty, is  estopped  after  work  is  done 
to  claim  that  a  less  number  of  feet 
front  is  assessable.  Cincinnati  v. 
Manss,  54  O.  S.  257;  Carson  v. 
Delhi,   12  C.   D.   723. 

So  a  petitioner  owning  a  corner 
lot  and  signing  for  the  frontage  on 
the  lengthwise  side  is  estopped  to 
resist  assessment  for  the  number  of 
feet  on  that  side.  Doppes  v.  Cincin- 
nati, 16  C.  C.  183;  Frampton  v. 
Sims,  1  N.  P.  (N.  S.)  355;  14  Dec. 
271. 

But  such  owner  is  not  estopped  to 
claim  to  be  assessed  only  for  the 
narrow  frontage  if  he  did  not  state 
the  length  of  the  lot  in  signing  the 
petition,  especially  where  the  city 
had  examined  the  frontage.  Gibson 
v.  Cincinnati,  9  C.  C.  243. 

And  signing  a  petition  for  im- 
provement of  side  street  to  be  paid 
for  by  assessment  per  front  foot  on 
the  lots  abutting  is  not  an  admis- 
sion that  the  frontage  is  on  the 
side  street.  Baker  v.  Schott,  10  C. 
C.  81. 

An  owner  is  not  estopped  to  deny 
the  frontage  stated  in  his  petition  if 
tRe  petition  was  not  signed  by  the 
requisite  three-fourths.  Baker  v. 
Schott,  10  C.  C.  81 ;  and  such  owner 
is  not  estopped,  if  the  petition  was 
not  necessary  to  enable  the  munici- 
pality to  improve.  Edwards  v.  Co- 
lumbus, 7  N.  P.  614. 


228 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  62 


Estoppel  to  claim  limitation  on 
amount. —  Where  a  petition  was 
presented  asking  that  the  entire  cost 
be  assessed  on  abutting  property  but 
was  not  signed  by  the  requisite  num- 
ber it  was  held  that  the  signers 
could  be  assessed  only  up  to  the 
limitation  allowed  by  the  general 
law  and  were  not  estopped  to  con- 
test assessment  of  entire  cost.  Hays 
v.  Cincinnati,  62  0.  S.  116.  See  fur- 
ther Storer  v.  Cincinnati,  4  C.  C. 
279;  Nevin  v.  Dayton,  4  N.  P.  203. 

Where  petitioners  agree  to  pay 
the  entire  cost  irrespective  of  the 
number  of  signers  to  the  petition, 
they  are  estopped  to  assert  the  statu- 
tory limitation  on  assessments. 
Thornton  v.  Cincinnati,  26  C.  C.  33. 

As  to  estoppel  where  signers  to 
such  a  petition  had  notice  that  coun- 
cil intended  to  exceed  the  limit  and 
made  no  objection  to  the  proceeding 
and  permitted  council  to  go  on  and 
contract  for  the  improvement,  see 
Storer  v.  Cincinnati,  4  C.  C.  279. 
See  further  Frey  v.  Findlay,  7  C.  C. 
311,  326.  Forother  cases  on  estop- 
pel, see  Locke  v.  Cincinnati,  7  N.  P. 
318;  Kemper  v.  St.  Bernard,  14  C. 
C.  134;  Punshon  v.  Cincinnati,  27 
B.  155. 

Burden  of  proof  is  on  municipal 
authorities  to  show  that  the  names 
of  owners  of  requisite  number  of 
feet  front  were  attached  to  petition. 
Andrew  v.  Auditor,  5  N.  P.   123. 

Jurisdiction  acquired. — The  city 
acquires  jurisdiction  when  the  peti- 
tion is  presented  and  if  a  signer  is 
then  owner  the  fact  that  he  after- 
wards conveys  the  property  is  not 
material.    Laird  v.  Cincinnati,  5  B. 


903.  But  see  Herman  v.  Columbus, 
15   Dec.   509. 

A  petition  becomes  absolute  when 
it  is  acted  upon  by  the  municipality. 
Andrew  v.  Auditor,  5  N.  P.  123. 

A  petition  properly  signed,  filed 
and  attached  to  another  petition  will 
be  deemed  to  have  come  to  the 
knowledge  of  council.  Squier  v. 
Cincinnati,  5  C.  C.  400. 

Council  does  not  lose  jurisdiction 
over  petition  by  reason  of  delay  of 
two  years  in  acting  thereon.  Whip- 
ple v.  Toledo,  7  C.  C.  (N.  S.)  520. 

Change  of  plan. — In  making  an 
improvement  petitioned  for,  council 
cannot  depart  from,  or 'do  other  than 
what  was  asked.  Minor  v.  Board, 
20  C.  C.  4.  See  further,  Cincinnati 
v.  Avenue  Co.,  26  O.  S.  345;  Mc- 
Glynn  v.  Toledo,  22  C.  C.  34,  (aff'd, 
47  B.  712);  Deuyer  v.  Shonert,  1 
C.  C.  73. 

But  additional  incidental  work, 
such  as  a  tile  drain,  deemed  neces- 
sary, may  be  put  in,  though  not  pe- 
titioned for.  Burke  v.  Wapakoneta, 
4  C.  C.  (N.  S.)  482;  Taylor  v.  Wa- 
pakoneta, 26  C.  C.  285.  As  to  case 
where  petition  does  not  specify  man- 
ner of  assessment  or  plan  of  pro- 
ceeding, see  Whipple  v.  Toledo,  7 
C.  C.  (N.  S.)  520. 

Assessment  cannot  exceed 
value  of  property. — Where  owner 
signs  a  three-fourths  petition  he 
may  be  assessed  to  the  full  value  of 
his  land  abutting  the  improvement, 
but  municipality  cannot  have  a  per- 
sonal judgment  for  remainder  of  as- 
sessment not  satisfied.  Laird  v.  Cin- 
cinnati, 5  B.  903. 


FORM  OF  PETITION  BY  OWNERS   OF  THREE-FOURTHS  IN 
INTEREST. 

To  the  Council  of  the  City  ['or  Village]  of ,  State  of  Ohio : 

We,  the  undersigned,  being  the  owners  of  the  number  of  feet  of  property 
set  opposite  our  names  below,  and  being  three-fourths  or  more  in  interest 

of  the  owners  of  property  abutting  upon street,  between 

.and ,    (here  state  termini  of  proposed  improvement) 

respectfully  petition  your  honorable  board  for  the  improvement  of  said 
street  between  the  points  aforesaid,  by  (here  describe  character  of  im- 
provement desired)  and  that  the  entire  cost  of  said  improvement,  except 
only  such  portion  thereof  as  is  by  law  chargeable  against  the  municipality, 
be  assessed  by  a  percentage  of  the  tax  value  thereof  [or  "by  the  foot 
frontage,"  or,  "in  proportion  to  the  benefits  that  will  result  from  said 
improvement,"]  upon  the  lots  and  lands  bounding  and  abutting  upon 
said street,  between  the  points  aforesaid. 


Code    §     63]        ASSESSMENTS.        ON    MUNICIPAL    PROPERTY.         229 

And  the  undersigned  and  each  of  them  consent  and  request  that  said 
assessments  be  levied  and  collected  without  reference  to  the  value  of 
the  property  of  subscribers  hereto,  and  waive  all  benefits  of  the  statute 
limiting  assessments  to  33y3  per  cent,  of  the  actual  value  of  property 
assessed ;  said  assessments  to  be  payable  in annual  installments,  pro- 
portioned to  the  whole  assessment,  or  in  cash,  at  the  option  of  the  owner  of 
property  assessed,  in  the  manner  provided  by  law  for  the  levy  and  collection 
of  assessments: 


Owner.  Number  of  feet  front.  Lot    Number, 


Note. — Although  upon  petition  under  §  62  above,  council  is  authorized 
to  assess  the  "  entire  cost "  upon  the  property  of  those  so  petitioning,  yet, 
in  view  of  the  words  which  follow,  it  appears  that  the  object  of  the 
petition  is  to  exclude  the  petitioners  from  the  benefit  of  the  33^  per  cent, 
limitation,  and  not  to  avoid  payment  by  the  municipality  of  its  share 
under  §  53  of  the  Code,  or  of  the  cost  of  property  condemned  or  of  dam- 
ages to  property  abutting,  ( when  the  improvement  involves  these ) .  But 
the  petition  for  the  improvement  may  be  so  drawn  as  to  estop  the 
petitioners  from  complaining  of  an  assessment  which  includes  even  the 
.cost  of  appropriating  property  as  well  as  damages  awarded  to  abutting 
owners.  See  Note  1,  to  §  2284  R.  S.,  re-enacted  in  §  94  of  the  Code,  notes 
on  estoppel  by  petition  under  §  61  of  the  Code,  and  Hendrickson  v.  Toledo, 
3  C.  C.  (N.  S.)  355;  23  C.  C.  256. 

FORMS  OF  RESOLUTION  AND  ORDINANCES  AFTER  THREE- 
FOURTHS  PETITION. 

(These  may  be  adapted  from  forms  given  where  the  owners  of  a  ma- 
jority of  the  foot  frontage  to  be  assessed  petition  for  the  improvement, 
under  §  61  of  the  Code.) 


(e)  Assessments  on  Municipal  Property. 
Sec.  63.  [Assessment  on  property  of  the  corporation.]1 
When  the  whole  or  any  portion  of  an  improvement  authorized 
by  this  title  passes  by  or  through  a  public  wharf,  market  space, 
park,  cemetery,  structure  for  the  fire  department,  waterworks, 
school  building,  infirmary,  market  building,  workhouse,  hospi- 
tal, house  of  refuge,  gas  works,  public  prison,  or  any  other 


230  the  Ohio  municipal  code.  [Code  §  64 

public  structure  or  public  grounds  within  and  belonging  to 
the  corporation  the  council  may  authorize  the  proper  propor- 
tion of  the  estimated  costs  and  expenses  of  the  improvement  to 
be  certified  by  the  clerk  of  the  corporation  to  the  county  audi- 
tor and  entered  upon  the  tax  list  of  all  taxable  real  and  per- 
sonal property  in  the  corporation,  and  the  same  shall  be  col- 
lected as  other  taxes.2 

(1)  Old  section  2276  R.  S.,  re-  S.)  122,  quere:  whether  under  pres- 
pealed.  ent  School  Code  school  property  is 

(2)  School  property  belonging  liable  for  street  assessment.  Peti- 
to  the  board  of  education,  is  not  tionbyBoardof  Education  for  street 
liable  for  street  or  sidewalk  assess-  improvement  does  not  make  school 
ments.  Toledo  v.  Board,  48  O.  S.  property  liable  for  assessment.  lb. 
83;  Board  v.  Toledo,  48  O.  S.  87.  Lien  of  assessment  not  defeat- 
Section  2275a  R.  S.,  repealed,  pro-  ed  by  subsequent  purchase  by  Board 
viding  that  the  board  of  education  of  Education  for  school  purposes, 
should  pay  out  of  its  funds  assess-  Board  of  Education  v.  Bowland,  15 
ments  levied  against  school  prop-  Dec.  334;  3  N.  P.  (N.  S.)  122. 
erty  was  held  unconstitutional  in  Assessments  on  municipal 
Board  v.  Auditor,  35  B.  294.  property. — Subject    discussed    un- 

But    see   Board    of   Education    v.       der  former  laws  in  Dick  v.  Toledo, 
Bowland,  15  Dec.  334;  3  N.  P.   (N.       11  C.  C.  349. 
I 

(f)  Second  Establishment  of  Grade. 
Sec.  64.  [Expense  of  changing  established  grades;  how  paid.]1 
When  a  street,  alley,  public  highway,  wharf,  or  landing  within 
the  corporation  is  graded  or  pavements  are  constructed  in  con- 
formity to  grades  established  by  the  authorities  of  the  cor- 
poration, and  the  expense  is  assessed  on  the  lots  or  lands  bene- 
fited thereby,  the  owners  shall  not  be  subject  to  any  special 
assessment  occasioned  by  any  subsequent  change  of  grade  in 
such  pavement,  sidewalk,  street,  alley,  public  highway,  wharf 
or  landing,  unless  a  petition 2  for  such  change  is  subscribed 
by  a  majority  of  the  owners  of  such  lot  or  lands;  and  the 
expense  of  all  improvements  occasioned  by  such  change  of 
grade,  not  so  petitioned  for,  shall  be  chargeable  to  the  general 
fund  of  the  corporation.3 

(1)  Old  section  2301  R.  S.,  see  (3)  Damages  awarded  abut- 
in    Part    II.  ters  cannot  be  included  in  the  as- 

(2)  Petition. — For  cases  relat-  sessment  on  abutting  property  for 
ing  to  signing  of  petition,  determin-  change  of  grade.  McGlynn  v.  To- 
ing  majority,  etc.,  see  notes  to  §§  61  ledo,  22  C.  C.  34  (aff'd  47  B.  712). 
and  62  of  the  Code.  But  if  owners  petitioning  ask  that 


Code   §  65]      ASSESSMENTS.      SPRINKLING,   CLEANING,  ETC.  231 

all   expenses   be    assessed    on    them,       ages,  see  Hendrickson  v.  Toledo,  2  , 
whether    they    will    be    estopped    to       C.  C.  256;  3  C.  C.  (N.  S.)  355. 
dispute  assessment  to  pay  such  dam- 

(</)  Sprinkling  and  Cleaning.1 
Sec.  65.  [Sprinkling-,  sweeping  and  cleaning  of  streets;  or- 
dinance for  such  purpose;  appointment  of  commissioners  in 
cities  to  determine  and  recommend  amount  of  work  necessary 
to  be  done  on  streets  within  a  year.]  Cities  and  villages  shall 
have  authority  to  sprinkle  with  water,  sweep,  and  clean  any 
streets  or  alleys,  or  parts  thereof.  All  said  work  may  be  done 
by  contract,  or  by  and  through  the  officers  of  such  cities  or 
villages.  But  before  said  work  shall  be  done  by  or  through 
the  officers  of  any  such  city  or  village,  the  council  thereof  shall 
pass  an  ordinance  authorizing  the  officer  or  officers  having  the 
care  of  streets  and  alleys  to  purchase  or  rent  the  necessary 
tools,  machinery  and  appliances,  to  employ  the  necessary  labor, 
and  to  do  said  work.  In  cities,  the  board  of  public  service 
may  appoint  two  electors,  owners  of  real  estate  abutting  on 
each  street  or  alley,  or  part  thereof,  who  shall  act  as  commis- 
sioners for  such  street  or  alley,  or  part  thereof,  and  who  shall 
serve  without  compensation.  Said  commissioners  shall  be  ap- 
pointed for  the  term  of  five  years,  or  until  their  successors  are 
appointed,  and  any  vacancy  may  be  filled  by  said  board  of 
public  service  by  the  appointment  of  some  qualified  person. 
Said  commissioners  shall  within  ten  days  after  such  appoint- 
ment, and  in  each  year  thereafter  at  such  time  as  the  board 
of  public  service  may  require,  file  with  the  board  of  public 
service  a  written  statement  of  the  sprinkling  with  water, 
sweeping,  or  cleaning,  that  in  their  opinion  will  be  necessary 
to  be  done  upon  such  street  or  alley,  or  part  thereof,  within 
any  period  between  the  first  day  of  January  and  the  thirty- 
first  day  of  December  of  the  year  for  which  such  statement 
shall  be  filed;  and  said  board  of  public  service,  from  the  state- 
ments so  filed  and  from  such  other  information  as  may  come . 
to  their  knowledge,  or  upon  failure  of  said  commissioners  to 
file  such  statement,  may  determine  and  recommend  to  the 
council,  as  provided  in  the  next  section,  what  work  is  necessary 


232  the  ohio  municipal  code.  *  [Code  §  66 

to  be  done,  upon  said  streets  or  alleys,  or  parts  thereof,  within 
any  such  period.2     [1906,  April  4,  98  v.  78;  97  v.  163.] 

(1)  Old  sections. — For  former  §§  65,  66  and  67  as  contained  in 
provisions  see  §§  2307  to  2312  R.  the  Code  as  first  passed  provided 
S.,  inclusive  (repealed).  for  petitions  for  sprinkling,  clean- 
Other  code  provisions. — By  ing,  etc.  They  were  not  in  harmony 
other  Code  provisions,  power  is  given  with  other  provisions  of  the  Code, 
cities  and  villages  through  council,  The  amendments  of  1904  and  1906 
directors  of  public  service  and  street  have  materially  changed  the  char- 
commissioner  to  improve,  light,  acter  of  these  sections, 
clean  and  sprinkle  streets,  make  (2)  When  work  done  by  mu- 
contracts  therefor  and  pay  the  ex-  nicipality. — Specifications  need  not 
pense  by  levy  of  taxes.  (See  §§  28,  be  prepared,  as  in  case  where  work 
140,  203  and  32.)  Under  §  50  the  cost  is  let  by  contract.  Andrix  v.  Co- 
of  any  of  these  things,  including  the  lumbus,  15  Dec.  672;  3  N.  P.  (N. 
cost  of  planting  shade  trees,  may  be  S.)  368;  (51  B.  227). 
paid  for  by  special  assessment. 

Sec.  66.  [Ordinance  for  sprinkling,  sweeping,  cleaning 
streets,  etc.;  notice.]  The  council  of  any  city  upon  the  recom- 
mendation of  the  board  of  public  service,  or  the  council  of  any 
village,  may  provide  by  ordinance  for  such  sprinkling  with 
water,  sweeping,  or  cleaning  of  said  streets  or  alleys,  or  parts 
thereof.  For  the  purpose  of  carrying  out  the  provisions  of 
this  section  and  of  the  next  preceding  section,  one  ordinance 
may  be  made  to  include  one  or  more  streets  or  alleys,  or  parts 
thereof,  and  one  or  more  of  the  powers  granted  by  this  sec- 
tion and  the  next  preceding  section.  Notice  of  the  passage  of 
said  ordinance  shall  be  given  the  owners  of  lots  and  lands  to 
be  assessed  for  the  payment  of  the  cost  and  expense  of  the 
work  provided  for  in  said  ordinance  by  publishing  said  ordi- 
nance, at  least  once,  in  some  newspaper  published  and  of  gen- 
eral circulation  within  the  corporation  and  no  other  or  further 
notice  shall  be  required.     [1906,  April  4,  98  v.  79;  97  v.  163.] 

Sec.  67.  [Assessment  of  cost  and  collection  thereof;  bonds 
may  be  issued  and  sold;  city  may  pay  part  of  cost.]  The  en- 
tire cost  and  expense  connected  with  any  work  in  any  year 
authorized  in  the  next  two  preceding  sections,  except  as  pro- 
vided in  this  section,  whether  done  by  contract,  or  by  and 
through  the  officers  of  said  cities  or  villages,  may,  by  ordi-  - 
nance,  be  assessed  upon  the  abutting  or  other  specially  bene- 
fited property,  and  by  any  one  of  the  methods  mentioned  in 


Code  §  67]      ASSESSMENTS.      SPRINKLING,  CLEANING,  ETC.  232a 

section  50  of  said  act.  The  assessments  so  levied  ma}'  be  col- 
lected in  one  installment  in  the  manner  provided  in  the  case 
of  assessments  for  street  improvements;  provided,  however, 
that  the  council  may,  if  it  deem  expedient,  levy  and  collect  said 
assessments,  at  any  time,  before  or  after  the  completion  of  said 
work.  •  The  said  assessing  ordinance  may  be  made  to  include 
the  property  abutting  upon  any  one  or  more  streets  or  alleys, 
or  parts  thereof,  and  one  or  more  of  the  powers  granted  in 
the  next  two  preceding  sections.  Bonds,  notes  or  certificates 
of  indebtedness  may  be  issued  and  sold  before  or  after  doing 
such  work  in  anticipation  of  the  levy  or  collection  of  said 
assessments,  and  may  be  authorized  and  provided  for  in  the 
assessing  ordinance,  or  in  a  separate  ordinance,  provided,  that 
no  publication  of  the  said  assessing  ordinance  or  of  the  said 
ordinance  authorizing  and  providing  for  such  notes,  bonds- or 
certificates  of  indebtedness  shall  in  any  case  be  required.  No 
part  of  the  cost  and  expense  connected  with  said  work  shall 
be  paid  by  the  city  or  village,  except  that  when  the  whole  or 
any  portion  of  any  street  or  alley  upon  which  said  work  shall 
be  done  passes  by  or  through  a  public  wharf,  market  space, 
park,  cemetery,  structure  for  the  fire  department,  waterworks, 
school  building,  infirmary,  market  building,  workhouse,  hos- 
pital, house  of  refuge,  gas  works,  public  prison,  or  any  other 
public  structure  or  public  grounds  within  and  belonging  to 
the  corporation,  and  except  as  provided  in  section  53  of  this 
act,1  the  council  may  authorize  the  proper  proportion  of  the 
estimated  cost  and  expense  of  the  said  work  to  be  certified  by 
the  clerk  of  the  corporation  to  the  county  auditor  and  entered 
upon  the  tax  list  of  all  taxable  real  and  personal  property  in 
the  corporation,  and  the  same  shall  be  collected  as,  and  in 
addition  to,  all  other  taxes.  The  right  of  the  city  or  village 
to  levy  said  assessments  shall  not  be  affected  by  the  tax  valua- 
tion of  the  property  to  be  assessed  or  by  the  amount  of  assess- 
ments theretofore  levied  upon  said  property.  [1906,  April  4, 
98  v.  79 ;  97  v.  163.] 

(1)  Limited  to  benefits. — In  assessment  laws,  because  its  value 
the  ease  of  sprinkling,  cleaning  and  for  use  by  the  owner  would  be  en- 
repairing  streets,  the  work  may  not  hanced.  Andrix  v.  Columbus,  15 
enhance  the  market  value  of  the  Dec.  673;  3  N.  P.  (N.  S.)  368  (51 
property,  and  yet  there  would  be  a  B.  227).  See  also  Walsh  v.  Sims, 
benefit,   within   the  meaning  of  the  65  O.  S.  211,  217. 


233  the  ohio  municipal  code.  [Code  §   68 

(h)  Hearing  on  Assessments  by  Benefits. 
Sec.  68.  [Appointment  of  board  to  report  estimate  of  assess- 
ments.]1 In  cases  wherein  it  is  determined  to  assess  the  whole 
or  any  part  of  the  cost  of  any  improvement  in  proportion  to 
the  benefits  which  may  result  from  such  improvement,  as  pro- 
vided for  herein,  the  council  may  appoint  three  disinterested 
freeholders  of  the  corporation  to  report  to  it  the  estimated 
assessment  of  such  cost  on  the  lots  and  lands  to  be  charged 
therewith,  in  proportion  as  nearly  as  may  be,  to  the  benefits 
which  may  result  from  the  improvement  to  the  several  lots  or 
parcels  of  land  so  assessed,  a  copy  of  which  assessment  shall 
be  filed  in  the  office  of  the  clerk  of  the  corporation  for  public 
inspection.2 


(1)  Old  section  2277  R.  S.,  re- 
pealed. 

(2)  Necessity  for  board. —  Un- 
der old  §  2277  R.  S.  it  was  held 
that,  if  council  determines  to  assess 
the  cost  of  an  improvement,  not  only 
on  such  lots  and  lands  as  abut  on 
the  improvement,  but  on  such  adja- 
cent and  contiguous  or  other  prop- 
erty designated  therein  as  benefited, 
in  proportion  to  benefits,  the  amount 
of  the  assessment  on  such  property 
cannot  be  fixed  by  council  by  the 
front  foot,  but  must  be  fixed  and  de- 
termined in  the  first  instance  by  the 
board  of  freeholders.  It  was  held 
that  §  2277  R.  S.  must  be  read  in 
connection  with  §  2264  R.  S.  Klein 
v.  Cincinnati,  7  C.  C.  266.  (Affirmed 
without  report,  52  O.  S.  650.) 

Apportionment. —  Such  part  of 
the  cost  may  be  assessed  as  is  equiv- 
alent to  the  special  benefit,  but  it 
must  not  exceed  the  benefit.  Cham- 
berlain v.  Cleveland,  34  O.  S.  551. 

The  assessing  committee  need  not 
determine  the  total  excess  of  bene- 
fits over  amount  of  assessment,  be- 
fore apportioning  the  assessment.  It 
is  sufficient  if,  in  the  case  of  each 
lot,  the  assessment  does  not  exceed 
the  benefit  and  the  lot  bears  only 
its  just  proportion  of  the  total  as- 


sessment. Blair  v.  Cary,  24  C.  C. 
560;  2  C.  C.  (N.  S.)  25. 

Irregularities  in  the  proceedings 
by  which  the  amount  to  be  assessed 
on  each  lot  was  obtained  will  not 
invalidate  the  assessment,  if  a  just 
result  was  reached.  The  committee 
need  not  proceed  in  any  prescribed 
manner.     lb. 

The  presumption  that  members  of 
an  estimating  board  did  their  duty 
will  not  obtain  as  to  duties  not  re- 
quired of  them,  and  it  will  not  be 
presumed  that  they  estimated  and 
apportioned  special  benefits,  but  this 
must  affirmatively  appear  of  record. 
Hill  v.  Cleveland;  2  Clev.  385. 

Review  of  proceedings  of  a  board 
estimating  assessments,  see  Cordes 
v.  Brooks,  18  C.  C.  801;  Toledo  v. 
Ford,  20  C.  C.  290;  Price  v.  Toledo, 
25  C.  C.  617;  4  C.  C.  (N.  S.)  57; 
Benham  v.  Cincinnati,  26  C.  C.  17. 

Under  former  statutes. —  Other 
cases,  under  former  statutes  on  this 
subject,  see  Krumberg  v.  Cincinnati, 
29  O.  S.  69;  Meissner  v.  Toledo,  31 
O.  S.  387;  Glenn  v.  Waddel,  23  O. 
S.  605.  And  see  Cincinnati  v. 
Batsche,  52  O.  S.  324. 

Notice  of  assessment  must  be 
published.  See  §  2278  R.  S.,  re- 
enacted  in  §  94  of  the  Code. 


Code    §    68]    ASSESSMENTS.       HEARING  ON  BENEFITS.  234 

ORDER  OF  PROCEDURE  FOR  ASSESSMENTS   BY  BENEFITS. 

1.  Follow  "  order  of  procedure,"  given  under  §  51,  supra,  from  "  1  "  to* 
"  7,"  inclusive. 

2.  Resolution  appointing   estimating  board.      ( §   68  of  the  Code. ) 

3.  Report  of  estimating  board.      (§  68  of  the  Code.) 

4.  Notice  of  assessment  made  by  estimating  board,  to  be  published. 
(§  2278  R.  S.,  re-enacted  in  §  94  of  the  Code.) 

5.  Objections  filed  by  property  owners  assessed.  (§  2279  R.  S.,  re 
enacted  in  §  94  of  the  Code.) 

6.  Resolution  appointing  equalizing  board  and  fixing  a  day  for  hearing 
objections,  if  any  objections  have  been  duly  filed.  (§  2279  R.  S.,  re- 
enacted  in  §  94  of  the  Code ;  and  §  69  of  the  Code. ) 

7.  Hearing  of  objections,  if  any  duly  filed.      ( §  69  of  the  Code.) 

8.  Report  of  equalizing  board.      (§   69  of  the   Code.) 

9.  Assessing  ordinance,  confirming  report  of  equalizing  board,  or  adopt- 
ing assessment  made  by  estimating  board  (in  case  no  objections  thereto 
have  been  filed)  and  otherwise  in  same  form  as  assessing  ordinance  under 
§   55   supra. 

FORM  OF  RESOLUTION  APPOINTING  ESTIMATING  BOARD. 

Resolution 

Appointing  board  to  report  estimated  assessment  to  pay  the  cost  and 
expenses  of  improving 

Whereas,  it  has  been   determined  by   council   to  assess   the   whole  cost 

less  1-50  thereof  and  the  cost  of  intersections  [or  " per  cent,  of 

the  whole  cost,  less  the  cost  of  intersections "]  of  the  improvement  of 
street,  from to in  proportion  to  the  bene- 
fits  which   may   result    from    said    improvement. 

Now   therefore: 

Be   it   resolved   by   the   council   of  the    city    [or  village]    of , 

State  of  Ohio,  that ,  and ,  three  disinter- 
ested freeholders  of  said  city  [or  village]  be  and  they  are  hereby  appoint- 
ed a  board  to  estimate  the  assessment  of  such  cost  on  the  lots  and  lands 

to  be  charged  therewith  as  set  forth  in  an  ordinance  No to  improve 

said  street,  passed ,   19...,   in  proportion  as  nearly  as  may  be 

to  the  benefits  which  may  result  from  the  improvement  to  the  several 
lots  or  parcels  of  land  so  assessed  and  to  report  to  this  council  the  said 
estimated    assessment. 

Passed ,  19 . . . 

Attest:  

President  of  Council. 

Clerk. 

FORM  OF  REPORT  OF  ESTIMATING  BOARD. 

,  19.... 

To  the  Council  of  the  City  [or  Village]  of 

The  undersigned,  an  estimating  board,  appointed  and  acting  in  pur- 
suance of  your   resolution,  passed  on  the day  of ,   19..., 

respectfully   report   the   following   estimated   assessment  of   the   cost  and 


235 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    69 


expenses  of    improving street,   from to t  up- 
on the  lots  and  lands  to  be  assessed  in  accordance  with  Ordinance   No. 

' to  improve  said  street,  passed  on  the day  of ,  19.  .  .  : 

Assessment. 


Owner. 


Description  of  Property. 


Frontage  and  Depth. 


Dollars. 


Cents. 


The  above  assessments  are  in  proportion  to  the  benefits  which  will 
result  to  such  lots  and  lands  from  said  improvement,  and  are  limited 
as  to  each  lot  and  parcel  by  the  special  benefit  conferred  thereon. 


Estimating  Board. 
(A  copy  of  above  report  must  be  filed  in  the  office  of  the  city  or  village 
clerk  for  public  inspection.) 

Sec.  69.  [Equalization  of  assessments.]1  On  a  day  appoint- 
ed by  the  council  for  that  purpose,  the  board,  mentioned  in  sec- 
tion 2279  of  the  Eevised  Statutes  of  Ohio,  after  taking  an 
oath  before  the  proper  officers,  to  honestly  and  impartially  dis- 
charge their  duties,  shall  hear  and  determine  all  objections  to 
the  assessment,  and  shall  equalize  the  same,  as  they  think  prop- 
er, which  equalized  assessment  they  shall  report  to  the  council, 
which  shall  have  the  power  to  confirm  the  same,  or  set  it  aside, 
and  cause  a  new  assessment  to  be  made  and  appoint  a  new 
equalizing  board  possessing  the  same  qualifications,  which 
shall  proceed  in  the  manner  above  provided.  When  the  as- 
sessment is  confirmed  by  the  council,  it  shall  be  complete  and 
final,  and  shall  be  recorded  in  the  office  of  the  clerk  of  council.3 


(1)  Old  section  2280  R.  S.,  re- 
pealed. 

(2)  Forms  — See  §  2279  R.  S., 
re-enacted  in  §  94  of  the  Code. 

(3)  Notice  of  time  of  meeting  of 
board  or  of  filing  report  need  not  be 
given.  Chamberlain  v.  Cleveland,  34 
O.   S.  551. 

Power  of  board. —  Board  cannot 


add  to  or  reduce  total  amount  of 
assessment  reported,  except  that  it 
may  add  compensation  for  services 
of  board.  Chamberlain  v.  Cleveland, 
34  O.  S.  551.  See  also  notes  under 
I  68,  supra. 


Code  §  70] 


ASSESSMENTS. 


SIDEWALKS. 


236 


(i)  Sidewalks,  Curbing  and  Gutters.1 

Sec.  70.     [Council  to  provide  for  construction  and  repair  of 

sidewalks,   curbing  and   gutters.]2     The  council  of  cities   and 

villages  may  provide  by  ordinance  3  for  the  construction  and 

repair  of  all  necessary  sidewalks,  curbing,  or  gutters,  or  parts 

thereof,  within  the  limits  of  the  corporation,  and  may  require 

by  imposition  of  suitable  penalties  or  otherwise,  the  owners  and 

occupants  of  abutting  lots  and  lands  to  keep  the  sidewalks, 

curbing  and  gutters  in  repair,  free  from  snow  or  any  nuisance.* 

[1904,  April  21,  97  v.  123.] 

where  an  abutting  owner  has  con- 
structed a  sidewalk  in  conformity 
with  an  established  grade,  council 
cannot  compel  him  to  remove  the 
sidewalk  and  construct  on  a  higher 
level  to  conform  to  existing  side- 
walks constructed  by  other  owners. 
McGuire  v.  East  Cleveland,  1  C.  C. 
(N.  S.)  435;  25  C.  C.  497. 

As  to  reasonableness  of  ordinance 
requiring  sidewalk  on  one  side  only 
and  assessing  owners  on  both  sides, 
see  Mills  v.  Norwood,  6  C.  C.  305 
and  §  2332  R.  S.,  re-enacted  in  §  94 
of  the  Code. 

It  is  an  abuse  of  discretion  for 
council  to  compel  owner  to  change 
sidewalk  in  good  repair  from  brick 
to  cement,  while  permitting  other 
owners  on  the  same  square  to  main- 
tain brick  walks.  Detmers  v.  Co- 
lumbus, 15  Dec.  212;  2  N.  P.  (N. 
S.)   657. 

Curbing. — Whether  curbing  is  a 
part  of  a  street  improvement  or  a 
sidewalk  improvement,  is  a  question 
of  fact  to  be  determined  from  all  the 
circumstances.  Ehni  v.  Columbus, 
3  C.  C.  494. 

Municipal  liability  for  failure 
to  keep  sidewalks  in  repair  and  free 
from  nuisance,  see  notes  under  §  28 
of  the  Code,  p.  116. 


(1)  Petition  for  sidewalk  con- 
struction   in    villages. — For    act 

giving  council  in  villages  power  to 
provide  for  construction  of  side- 
walks upon  petition  of  property 
owners,  see  act  of  April  26,  1904, 
found  in  Part  II.,  p.  774. 

(2)  Old  section  2328  R.  S.,  re- 
pealed. 

(3)  Sidewalk  ordinance  is  of 
general  nature  and  must  be  read  on 
three  different  days.  See  note  (1) 
under  §  1694,  R.  B.,  p.  319. 

Council  having  passed  a  general 
ordinance  for  improvement  of  side- 
walks, no  special  ordinance  for  any 
particular  sidewalk  is  required,  in 
order  to  assess  abutting  owner. 
Westenhaver  v.  Hoytsville,  28  C.  C. 
357. 

(4)  Validity. — It  is  not  uncon- 
stitutional to  impose  upon  lot  own- 
ers the  duty  of  making  sidewalks. 
Bonsall  v.  Lebanon,  19  O.  418. 

Scope  of  power. — Council  may 
prescribe  by  resolution  that  portion 
of  a  street  which  shall  be  used  as 
a  sidewalk.  Cox  v.  Lancaster,  24 
C.  C.  265;  2  C.  C.(N.  S.)218  (aff'd, 
69  O.  S.  576)  ;  and  council  may 
narrow  sidewalks  already  construct- 
ed without  compensation  to  abutting 
owner,  Anderson  v.  Columbus,  1  N. 
P.    (N.   S.)    541;    14  Dec.    180;   but 


ORDER  OF  PROCEDURE  IN  SIDEWALK  IMPROVEMENTS. 

1.  Council  may  pass  a  General  Ordinance  for  the  construction,  repair 
and  keeping  in  repair  and  free  from  snow  or  other  nuisance  of  all  side- 
walks in  the  corporation.  (§70  of  the  Code.)  Such  ordinance  would  be 
governed  by  §§  140,  143,  198  and  203  of  the  Code  with  respect  to  the 
supervision  of  work  and  the  letting  of  contracts. 

2.  Resolution  to  construct  or  repair  certain  specified  sidewalks  (where 
cost  is  to  be  paid  by  abuting  owner)   passed  by  council.     §  71  of  the  Code. 

3.  Notiae  to  owner  or  agent  of  the  passage  of  said  resolution;  served  as 


237  the  ohio  municipal  code.  [Code  §  71 

summons  in  a  civil  action,  or,  if  such  owner  is  a  non-resident,  or,  if 
neither  such  owner  nor  agent,  nor  their  place  of  residence  can  be  found, 
then  publication  of  a  copy  of  said  resolution,  as  street  improvement  reso- 
lutions are  published.     (See  §  51  supra.)     §§71  and  72  of  the  Code. 

4.  Work  to  be  done  by  municipality  at  owners'  expense,  if  such  sidewalks 
are  not  constructed  within  fifteen  days  or  repaired  within  five  days  from 
service  of  notice  or  completion  of  publication.  §  73  of  the  Code.  The 
supervision  of  such  construction  or  repair  and  the  letting  of  contracts 
therefor  would  be  governed  by  §§  140,  143,  198  and  203  of  the  Code. 

5.  Assessing  Ordinance  to  pay  cost  of  constructing  or  repairing  sidewalks 
under  §  73,  or  the  cost  of  constructing  sidewalks  and  issuing  bonds  there- 
for under  §  75,  levying  assessments  therefor  in  any  of  the  methods  provided 
for  street  assessments.  Such  assessing  ordinance  would  be  governed  by 
the  limitations  of  §  53  of  the  Code.  (Norwood  v.  Bldg.  Ass'n,  7  C.  C.  95; 
Cincinnati  v.  Connor,  55  0.  S.  82.) 

6.  Sidewalks  constructed  as  street  improvements.  The  special  method 
given  in  §§  71,  72,  73  and  75  of  the  Code  for  the  construction  and  repair 
of  sidewalks,,  and  outlined  in  the  order  of  procedure  from  2  to  5  inclusive, 
above,  does  not  seem  necessarily  to  exclude  the  exercise  of  the  general 
authority  given  in  §  50  et  seq.  to  the  councils  of  all  municipal  corporations 
to  improve  streets  "  by  constructing  sidewalks ,J  along  the  same,  and  to 
assess  the  cost  thereof  as  in  other  cases  of  street  improvements. 

Sec.  71.     [Notice  to  owners  of  abutting  property  to  construct 

or  repair  sidewalks,  curbing  or  gutters;  return  of  copy  of  notice; 

service  upon  agent  of  owner.]1     When  the  council  of  cities  or 

villages  declares  by  resolution  2  that  certain  specified  sidewalks, 

curbing  or  gutters  shall  be  constructed  or  repaired,  the  clerk 

of  council  shall  cause  a  written  notice  3  of  the  passage  of  such 

resolution  to  be  served  upon  the  owner  or  agent  of  the  owner 

of  each  parcel  of  land  abutting  on  such  sidewalk,  who  may  be 

a  resident  of  such  city  or  village,  in  the  manner  provided  by 

law  for  the  service  of  summons  in  a  civil  action,  and  shall 

return  a  copy  of  such  notice  with  the  time  and  manner  of 

service  indorsed  thereon,  signed  by  the  officer  serving  the  same, 

to  the  department  of  public  service  in  cities,  and  to  council  in 

villages  which  shall  file  and  preserve  the  same;  and  for  the 

purpose  of  such  service,  if  the  owner  is  not  a  resident  of  the 

city  or  village,  any  person  charged  with  the  collection  of  rents 

or  the  payment  of  taxes  on  such  property  or  having  general 

control  thereof  in  any  way,  shall  be  regarded  as  the  agent  of 

the  owner;  and  such  return  shall  have  the  like  force  and  effect 

as  the  sheriff's  return  on  summons  in  a  civil  action.      [1904, 

April  21,  97  v.  123.] 

(1)    Old  section    2329  R.  S.,  re-       walk  in  front  of  a  piece  of  property 

pealed.  was  held  to  be  of  a  permanent  na- 

(2)   Resolution  ordering  side-       ture  and  to  require  three  readings. 


Code    §     71]                 ASSESSMENTS.  SIDEWALKS.                                       238* 

Thatcher  v.  Toledo,  19  C.  C.  311.     If  Describing  the  property  on  a  cer- 

not  so  read,  the  construction  of  the  tain  corner  of  two  streets,  without 

sidewalk  by  city  and  assessment  on  giving    the    number    of    feet    to    be 

owner  who  did  not  construct  as  or-  paved,  was,  however,  held  sufficient, 

dered,  will  be  invalid.     lb.     And  see  Cincinnati  v.  Gordon,  7  B.  79. 

Cincinnati  v.  Johnson,  17  C.  C.  291.  Notice     to     repair     as     showing 

( 3 )   Necessity  for  notice. —  City  knowledge  of  the   city   of   defective 

has  no  power  to  make  the  sidewalk  condition,   which   caused   an  injury, 

itself  unless  the  property  owner  has  see  Shelby  v.  Clagett,  46  O.  S.  549. 

been  notified  and  has  had  an  oppor-  Service  of  notice  was  held  to  be 

tunity  to  make  it.     Hunt  v.  Hunter,  necessary  upon  an  owner  who  lives 

11   C.   C.   69.     If  the  notice  is   not  in  the  county  but  not  in  the  munic- 

given  the  assessment  for  construct-  ipality.     39  B.  113    (edit), 

ing  is  wholly  void.     Schmidt  v.  Elm-  Sufficiency    of    sidewalk. —  The 

wood  Place,  15  C.  C.  351.  council's    determination    as    to    the 

Character  of  notice. —  The  notice  sufficiency  of  the  sidewalk  as  con- 
must  be  reasonably  specific  as  to  structed  by  the  property  owner  is 
place.  Where  a  property  owner  not  to  be  reviewed  by  the  court,  or 
owns  385  feet  and  the  notice  calls  if  reviewable,  the  property  owner 
for  185  feet,  not  locating  it,  the  must  show  its  sufficiency  so  clearly 
owner  is  not  in  default  for  dis-  as  to  leave  but  little  doubt.  Cin- 
regarding  it.  It  is  not  his  duty  to  cinnati  v.  Longworth,  22  B.  153. 
locate  the  sidewalk.  Cincinnati  v. 
Mfg.  Co.,  7  B.  30. 


FORM  OF  RESOLUTION  TO  CONSTRUCT  OR  REPAIR  SIDEWALKS. 

Be  it  resolved  by  the  council  of  the  city  [or  village]  of ,  State  of 

Ohio: 

That  a  sidewalk  shall  be  constructed  on  the side  of 

street,  from to ,  of  the  character  and  in  the  manner 

following:  (here  state  character  of  sidewalk,  manner  of  constructing, 
materials  to  be  used,  etc. ;  or  use  the  words,  where  applicable,  "  in  accord- 
ance with  the  plans  and  specifications  therefor  on  file  in  the  office  of  the 
department  of  Public  Service,"  or,  in  villages,  "of  the  street  commis- 
sioner." ) 

[Or,  in  case  of  repair,  That  the   sidewalk  in  front  of  the  premises  of 

,  on  the side  of street,  between 

an(* ,  being  lot  No of sub-division,  and  known  as 

No >    street,  be  repaired  in  the  following  manner:    (here 

describe   character    of   repairs    required).] 

That  the  clerk  of  council  be  and  he  is  hereby  directed  to  cause  a  written 
notice  of  the  passage  of  this  resolution  to  be  served  as  required  by  law. 

Passed (  19 . .  . 

Attest:  

President  of  Council. 

Clerk. 

FORM  OF  NOTICE  TO  CONSTRUCT  OR  REPAIR  SIDEWALKS. 
To : 

You  are  hereby  notified  that  in  accordance  with  a  resolution  passed 

by  the  council  of  the  city  [or  village]  of ,  State  of  Ohio,  you 

are  required  to  construct  [or  repair]  a  [or  the]  sidewalk  in  front  of 

you  premises  on  the side  of street,  between and 

,  being  lot  No of subdivision,  and  known  as 

No ,  street,  of  the  character  (in  case  of  construction) 

and  in  the  manner  following:    (here  repeat  requirements  of  resolution). 


239  the  ohio  municipal  code.        [Code  §§  72,  73 

If  said  sidewalk  is  not"  constructed  within  fifteen  days  [or,  repaired 
within  five  days]  from  the  service  of  this  notice,  the  department  of  public 
service  [or  in  villages,  the  council]  will  have  the  same  done  at  your 
expense,  and  such  expense  will  be  assessed  upon  your  property  and  made 
a  lien  thereon  and  be  collected  in  the  manner  provided  by  law,  with  penalty 
and  interest  if  not  paid  as  required  in  the  levy  of  assessment. 

,  19 Clerk  of  Council. 

FORM  OF  RETURN. 

Received  the  within  notice  on  the day  of ,   19. .  . .,  and 

served  the  same  by  delivering  a  true  copy  thereof  personally  (or  insert 
any  other  method  in  conformity  with  requirements  of  law  for  service  of 

civil  actions )   upon ,  on  the day  of ,  19 . . , 

at M. 

(Officer  serving  notice.) 
If  curbing  and  gutters  are  also  to  be  provided  for,  the  forms  given  may 
be  easily  adapted. 

Sec  72.     [Notice  to  non-residents  and  persons  not  found.]1 

If  it  appear  in  the  return  in  any  case  of  the  notice  provided  for 
in  the  preceding  section,  that  such  owner  is  a  non-resident  of 
the  county,  or  that  neither  any  such  owner,  nor  agent,  nor  their 
place  of  residence  could  be  found,  then  a*  notice  given  by  publica- 
tion of  a  copy  of  the  resolution  in  some  newspaper  of  general- 
circulation  in  the  corporation,  in  the  manner  heretofore  provided 
for  the  service  by  publication  of  resolutions  for  street  improve- 
ments2 shall  be  deemed  sufficient  notice  to  such  owner,  but  no 
publication  of  said  resolution  shall  be  necessary  in  the  case  of 
construction  or  repair  of  sidewalks,  curbing  and  gutters  where 
said  notice  is  served  upon  the  owner  or  agent  as  provided  in 
section  71.     [1904,  April  21,  97  v.  124.] 

(1)  Old  section  2329 R.S.  (rep).  (2)   See  §  52  of  the  Code. 

Sec.  73.  [In  cities;  on  failure  of  owner  to  construct  or  re- 
pair, same  to  be  done  at  his  expense.]1  If  such  sidewalks, 
curbing  or  gutters  are  not  constructed  within  fifteen  days,  or 
not  repaired  within  five  days  from  the  service  of  notice,  or 
completion  of  the  publication,  the  department  of  public  service 
in  cities  may  do  or  have  the  same  done  at  the  expense  of  the 
owner,2  and  all  such  expenses  shall  be  assessed  on  all  the 
property  abounding  or  abutting  thereon.  Said  assessments 
shall  be  collected  in  the  same  manner  with  a  penalty  of  five  per 
centum  and  interest  for  failure  to  pay  at  the  time  fixed  by  the 
assessing  ordinance,  as  in  cases  of  improvements.3  No  other 
or  further  proceedings  for  the  construction  or  repair  of  side- 
walks, curbing  or  gutters  and  levying  assessments  therefor, 


Code  §  73a]  assessments,     sidewalks.  240 

shall  be  necessary  by  the  department  of  public  service,  than 
the  proceedings  required  under  this  and  the  two  preceding 
sections,4  and  in  any  case  in  which  special  assessments  have 
been  made  on  property  of  all  the  cost  of  the  construction  or 
repair  of  sidewalks,  curbing  or  gutters  under  this  and  said 
two  preceding  sections  as  they  stood  before  this  amendment, 
said  assessment  shall,  within  the  limitation  of  benefits  and 
the  limits  of  thirty-three  per  cent,  of  the  taxed  value  of  the 
property,  be  valid  assessments  upon  said  property. 

[In  villages ;  on  failure  of  owner  to  construct  or  repair,  same 
to  be  done  at  his  expense.]  If  such  sidewalks,  curbing  or  gut- 
ters are  not  constructed  within  fifteen  days,  or  not  repaired 
within  five  days  from  the  service  of  the  notice,  or  completion 
of  the  publication,  the  council  in  villages  may  have  the  same 
done  at  the  expense  of  the  owner  and  report  the  cost  thereof 
to  such  owner.  The  cost  of  such  construction  or  repair  shall 
constitute  a  lien  on  the  property  abutting  on  such  sidewalks 
from  the  date  the  same  is  so  reported  to  such  owner,  and  shall 
be  paid  by  the  owner  to  the  treasurer. of  the  municipality.  If 
the  cost  of  said  construction  or  repair  is  not  paid  within  ten 
days  from  the  time  the  same  has  been  reported  to  such  owner, 
the  clerk  in  villages  shall  certify  the  same,  together  with  a 
penalty  of  five  per  centum  thereon  to  the  county  auditor,  who 
shall  place  the  same  on  the  tax  duplicate  and  collect  such  costs 
and  penalties  in  the  same  manner  as  other  taxes  are  collected. 
[1906,  April  16,  98  v.  301;  97  v.  124.] 

(1)  Old  section  2330  R.  S.,  re-  to  thirty-three  and  one-third  per 
pealed,  §  2330d  (95  O.  L.  604)  re-  cent,  of  the  value  of  the  property 
pealed.  assessed  would  apply  to  sidewalk  as- 

(2)  Validity. — A  provision  such  sessments.    Norwood  v.  Bldg.  Ass'n, 
as  this  held  constitutional.    Bonsall  7  C.  C.  95.     See  also  Cincinnati  v. 
v.  Lebanon,  19  O.  418.  Connor,  55  O.  S.  82.    But  see  West- 
Necessity  of  notice  before  city  enhaver  v.  Hoytsville,  28  C.  C.  357. 

can  construct  and  charge  abutting  Form   of   assessing   ordinance 

owner,  see  Hunt  v.  Hunter,  11  C.  C.  may  be  adapted  from  form  under  § 

69;   Schmidt  v.  Elmwood  Place,  15  75  of  the  Code. 

C.  C.  351.  (4)   Method   of   improvement. 

(3) Limitation  of  sidewalk  as-  — The  method  given  in  this  and  sec- 

sessments. — Under  former  laws  as-  tions   immediately   preceding  is   in- 

sessments  for  sidewalks  were  held  to  tended  to  be  distinct  from  method 

be  governed  by   a   statute   limiting  provided  in  §  50  et  seq.  under  which 

street  assessments  to  twenty-five  per  sidewalks   may   also  be   constructed 

cent,  of  the  value  of  the  property  and  repaired.     The  legislature  had 

assessed.     Upon  the  same  principle  in  view  an  alternative  procedure  for 

§   53  of  the  Code,  limiting  all   as-  sidewalk  improvements.     Westenha- 

sessments  for  public  improvements  ver  v.  Hoytsville,  28  C.  C.  357. 

Sec.  73a.  [Assessment  of  cost  for  construction  or  repair  of 
sidewalks,  curbings  or  gutters;  how  paid.]     When  sidewalks, 


240a  the  ohio  municipal  code.  [Code  §  74 

curbing  or  gutters  are  constructed  or  repaired  in  accordance 
with  the  section  to  which  this  section  is  supplementary,  the  as- 
sessment for  the  cost  thereof  may  be  made  payable  in  full  not 
less  than  thirty  nor  more  than  sixty  days  from  the  levy  thereof 
or  in  not  exceeding  five  annual  installments,  as  council  may  de- 
termine. In  anticipation  of  the  collection  of  said  assessments 
bonds  of  the  municipal  corporation  may  be  issued  bearing  in- 
terest not  exceeding  six  per  cent,  per  annum  and  the  proceeds 
thereof  used  in  the  payment  of  the  cost  incurred  by  reason  of 
such  construction  or  repair.  In  the  passage  of  the  resolution 
declaring  that  certain  specified  sidewalks,  curbing  or  gutters 
shall  be  constructed  or  repaired  and  in  all  the  subsequent  pro- 
cedure necessary  to  secure  the  construction  or  repair  of  side- 
walks, curbing  or  gutters,  and  collect  the  assessment  therefor, 
sidewalks,  curbing  or  gutters,  although  upon  different 
streets  and  abutting  upon  lots  or  land  owned  by  different  per- 
sons, may  be  provided  for  in  the  same  resolution,  notice,  con- 
tract, and  ordinance  or  other  step  in  such  procedure. 
[1904,  April  25,  97  v.  384.] 

Sec.  74.  [Notice  to  owners  of  abutting  property  to  clean  side- 
walks, etc.]1  When  the  council  in  villages  or  the  board  of  pub- 
lic service  in  cities  declares  by  resolution  that  a  certain  specified 
sidewalk  or  sidewalks,  curbing  or  gutters  shall  be  cleaned  so 
as  to  be  free  from  weeds,  grass,  dirt,  snow  or  any  other  objec- 
tionable substance,  it  shall  then  be  the  duty  of  the  clerk  of  the 
council  in  villages  and  of  the  board  of  public  service  in  cities 
to  cause  notice  of  the  passage  of  such  resolution  to  be  served 
upon  the  owners  of  each  parcel  of  land  abutting  on  such  side- 
walk ordered  cleaned.  Such  notice  shall  be  given  in  the  same 
manner  as  is  provided  for  service  of  notice  to  construct  side- 
walks. 

[On  failure  of  owners  to  clean  such  sidewalks,  etc.,  same  to  be 
done  at  their  expense.]  If  said  sidewalks,  curbing  or  gutters 
are  not  cleaned  within  five  days,  except  if  the  objectionable  sub- 
stance be  snow,  then  within  one  day,  after  the  service  of  th* 


Code    §    75]  ASSESSMENTS.       SIDEWALKS.  241 

notice  or  completion  of  the  publication,  the  department  of  pub- 
lic service  in  cities  and  the  street  commissioner  in  villages  shall 
have  the  same  done  at  the  expense  of  the  owner  and  report  the 
cost  thereof  to  him,  and  to  council  in  villages,  and  to  the  board 
of  public  service  in  cities.  The  cost  of  such  cleaning  shall 
constitute  a  lien  upon  the  property  abutting  on  such  sidewalks 
from  the  date  the  same  is  so  reported,  and  shall  be  paid  by  the 
owner  to  the  treasurer  of  the  municipality.  If  the  cost  of  said 
cleaning  is  not  paid  within  ten  days  from  the  time  the  same 
has  been  so  reported,  the  said  clerk  in  villages  and  the  depart- 
ment of  public  service  in  cities  shall  certify  the  same,  together 
with  a  penalty  of  five  per  centum  thereon  to  the  county  auditor, 
who  shall  place  the  same  on  the  tax  duplicate  and  collect  such 
costs  and  penalties  in  the  same  manner  as  other  taxes  are  col- 
lected.    [1904,  April  21,  97  v.  124.] 

(1)  See  old  §  2329a  R.  S.,  re-  Forms  of  resolution  and  notice 
pealed.                                                            may  be  adapted  from  forms  under 

(2)  See  notes  to  §  73,  supra.  §  71  supra. 

Sec.  75.  [Construction  of  sidewalks,  curbing  or  gutters;  bond 
issue  authorized.]1  In  cities  and  villages,  whenever  sidewalks, 
curbing  or  gutters  are  to  be  constructed  pursuant  to  a  resolu- 
tion of  council,  the  department  of  public  service  in  cities  and 
council  in  villages,  may  construct  such  sidewalk  or  parts  there- 
of, or  curbing  or  gutters  or  parts  thereof,2  and  assess 3  the 
cost  and  expense  thereof  upon  the  abutting,  adjacent  and  con- 
tiguous or  other  specially  benefited  property 4  according  to 
the  rule  heretofore  provided  for  street  improvements;  and  to 
carry  out  such  purpose,  council  is  hereby  authorized  to  issue 
bonds  of  such  city  or  village,  in  denominations  not  to  exceed 
one  thousand  dollars,  each  to  be  payable  in  not  less  than  one 
nor  more  than  ten  years,  and  to  bear  interest  at  a  rate  not  to 
exceed  six  per  centum  per  annum,  which  bonds  shall  not  be 
sold  for  less  than  their  par  value  and  the  proceeds  arising  from 
such  sales  shall  be  applied  to  the  cost  of  such  improvements,  the 


242 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    75 


cost  of  issuing  such  bonds,  the  payment  of  interest  thereon  and 
to  no  other  purpose.  The  assessments  shall  be  in  such  amounts 
as  will  be  sufficient  to  provide  for  the  payment  of  such  bonds 
and  the  interest  due  thereon  as  the  same  mature,  and  such 
assessments  shall  be  certified  to  the  auditor  of  the  county  in 
which  such  city  or  village  is  situated,  to  be  placed  upon  the 
duplicate,  and  shall  be  a  lien  upon  all  property  so  assessed  if 
such  assessment  is  not  paid  within  the  time  fixed  in  the  assess- 
ing ordinance. 


(1)  Old  sections,  see  §§  2330a, 
2330b,  R.  S.,  repealed. 

(2)  Certificate     of     money     in 

treasury  was  held  not  to  be  required 
in  case  •  of  a  contract  for  con- 
struction of  sidewalks  where  the  act 
contemplates  that  the  money  shall 
not  be  in  the  treasury  by  providing 
that  the  money  is  to  be  raised  by  a 
bond  issue.  Trowbridge  v.  Hudson, 
24  C.  C.  76. 

Discretion  of  council  as  to  rejec- 
tion of  bids  under  former  §  23306, 
R.  S.  See  Trowbridge  v.  Hudson, 
24  C.  C.  76. 

(3)  Corner  lot  doctrine  was 
held  not  to  apply  to  sidewalk  as- 
sessments. Baker  v.  Schott,  10  C. 
C.  81.      (Affirmed,  31  B.  335.) 

(4)  Assessing  ordinance — How 
passed. —  The  language  used  above 
indicates  that  the  assessing  ordi- 
nance for  sidewalk  improvements  is 
to  be  passed,  in  cities,  by  the  board 
of  public  service.  It  appears  to  have 
been  adapted  from  the  old  special 
law  in  §  2330a  R.  S.,  repealed,  and 
doubtless  the  intention  was  to  give 


the  power  to  construct  sidewalks  to 
the  board  of  public  service  in  cities 
and  to  councils  in  villages  and  the 
power  to  levy  assessments  therefor 
to  council  in  all  municipalities.  This 
is  in  harmony  with  §§  51  and  53, 
supra,  empowering  council  only  to 
levy  assessments  to  pay  the  cost 
of  all  improvements,  including  side- 
walks, and  imposing  the  duty  upon 
council  to  limit  such  assessments,  as 
well  as  many  other  provisions  of  the 
Code.  It  would  seem  the  better 
course,  therefore,  that  the  assessing 
ordinance  above  referred  to  be 
passed  by  council,  though  any  ques- 
tion as  to  regularity  may  be  avoided 
by  concurrence  in  such  ordinance  by 
the  board  of  public  service.  As  to 
the  manner  of  passing  such  ordi- 
nances, if  by  the  board  of  public- 
service,  see  Cincinnati  v.  Johnson. 
17  C.  C.  291;  Cincinnati  v.  Spillard. 
afPd  without  report,  62  O.  S.  637. 
Damages  for  change  of  grade. 
—  Provisions  relating  thereto  held 
to  apply  to  sidewalk  improvements. 
City  v.  Gordon,  7  B.  79. 


FORM  OF  ASSESSING  ORDINANCE  FOR  SIDEWALK  IMPROVEMENT. 
Ordinance  No 


To  levy  special  assessments  for  the  construction  of  sidewalks  on 
street,  between and 


Code  §  75] 


ASSESSMENTS.       SIDEWALKS. 


243 


Be  it  ordained  by  the  council  of  the  city  [or  village]  of ,  State 

of  Ohio: 

Sec.  1.     That  to  pay  the  cost  and  expenses  of  constructing  sidewalks  on 

street,    between and ,    in    accordance    with 

the   resolution   of  council   passed  on  the day  of .-.-.,    19 ... , 

there  be  levied  and  assessed  upon  the  lots  and  lands  hereinafter  described 
the  several  amounts  herein  set  forth,  viz.: 

Assessment. 


Owner. 


Description  of     property. 


Dollars. 


Cents. 


Which  assessments  are dollars  and ......  cents  per  front  foot  of  the 

property  bounding  and  abutting  on  the side  of . . . .  .- street, 

between and 

(In  case  of  assessments  by  a  percentage  of  tax  value  or  according  to 
benefits,  see  form  under  §  55  supra.) 

Sec.  2.  (Same  as  Assessing  ordinance  under  §  55  supra;  and  see  require- 
ments of  §  73a.) 

Sec.  3.  That  to  provide  a  fund  for  the  payment  of  the  cost  and 
expenses  of  constructing  sidewalks  as  aforesaid,  the  mayor  and  auditor 
[or  in  villages,  clerk],  be  and  they  are  hereby  authorized  to  issue  and  sell 

the  bonds  of  the  city  [or  village]   of ,  according  to  law,    (bonds 

must  not  exceed  $1,000  in  denominations,  they  must  be  payable  in  not  less 
than  one,  nor  more  than  10  years,  and  must  first  be  offered  for  sale  to  the 
sinking  fund  trustees,  and  if  not  sold  to  said  trustees,  they  must  be 
advertised,  etc.  See  §§  75,  95  and  97  of  the  Code.),  and  the  proceeds 
arising  from  such  bonds  shall  be  applied  to  the  cost  of  such  construction 
of  sidewalks,  the  expenses  of  issuing  such  bonds,  the  payment  of  interest 
thereon,  and  to  no  other  purpose  whatsoever;  and  for  the  payment  of  said 
bonds  and  interest  thereon  the  revenue  and  faith  and  all  the  real  and 
personal  property  of  the  city  [or  village]  are  hereby  pledged;  provided, 
that  if  within  the  time  above  specified,  and  before  the  sale  of  the  said 
bonds  any  of  the  owners  of  said  property  shall  pay  their  total  assessments 
in  cash,  the  aggregate  sum  in  bonds  shall  be  reduced  by  deducting  the 
amount  so  paid  from  the  total  amount  of  the  fund  to  be  provided,  and  the 
bonds  issued  shall  be  reduced  accordingly. 

Sec.  4.  That  the  proceeds  arising  from  the  sale  of  said  bonds,  together 
with  all  moneys  received  from  the  cash  payments  of  assessments,  shall  be 
placed  in  the  city  [or  village]  treasury,  and  disbursed  upon  proper 
vouchers  for  the  purposes  herein  provided. 

Sec.  5.  That  the  installments  of  assessments  and  all  portions  thereof, 
shall  be  applied  to  the  payment  of  said  bonds  and  interest,  as  the  same  shall 
become  due,  and  to  no  other  purpose  whatsoever. 


244  the  ohio  municipal  code.  [Code  §§  76, 77 

Sec.  6.     That  this  ordinance  shall  take  effect  and  be  in  iorce  irom  and 
after  the  earliest  period  allowed  by  law. 
Passed . , ,  19 . . . 

attest : 


Clerk.  President  of  Council. 

(All  assessments  not  certified  to  the  county  auditor  must  be  paid  to  the 
city  or  village  treasurer.  No  authority  seems  to  be  given  to  assign  such 
assessments  to  the  contractor.     See  §  94  of  the  Code.) 

Sec.  76.  [Construction  of  sidewalks  along  property  of  the  cor- 
poration.]1 In  all  cases  where  it  is  deemed  necessary  by  a  mu- 
nicipal corporation  to  build  or  repair  sidewalks,  curbing  or 
gutters  along  that  portion  of  any  street,  alley  or  public  highway 
which  passes  by  or  through  any  public  wharves,  market  spaces, 
parks,  cemeteries,  public  grounds  or  buildings,  the  proper  pro- 
portion of  the  estimated  expense  thereof  shall  be  by  the  council 
of  such  corporation  levied,  certified  and  collected  in  the  manner 
provided  herein  for  the  assessment  of  street  improvements. 
[1904,  April  21,  97  v.  125.] 

(1)  Old  section  2334  R.  S.,  re- 
pealed. Old  §  2334  R.  S.  supple- 
mented 95  O.  L.  416,  repealed. 

(j)  8 ewers. 
Sec.  77.  [City  engineer  to  devise  plan  of  sewerage.]1  In  ad- 
dition to  the  power  herein  conferred  to  construct  sewers  and 
levy  assessments  therefor,  council  of  a  city  or  village  may  pro- 
vide a  system  of  sewerage  for  such  municipal  corporation  or 
any  part  thereof;  it  shall  be  the  duty  of  the  engineer  of  such 
city  or  village,  or  some  person  employed  by  the  municipality, 
to  devise  and  form,  or  cause  to  be  devised  and  formed,  a  plan 
of  the  sewerage  of  the  whole  city  or  village,  or  such  part 
thereof  as  may  be  designated  by  the  council;  and  such  plans 
shall  be  devised  with  regard  to  the  present  and  prospective 
needs  and  interests  of  the  whole  city  or  village;  which  plans 
shall  be  by  him  reported  to  the  council  for  its  confirmation.3 


Code  §  77] 


ASSESSMENTS.       SEWEKS. 


245 


(1)  Old  section. —  Compare  § 
2366  R.  S.,  repealed. 

(2)  Adoption  of  system  of  sew- 
erage was  held,  under  former  laws, 
not  necessary  to  be  first  made  before 
a  single  independent  sewer  could  be 
constructed.  The  general  power  to 
build  sewers  given  to  municipalities 
would  not  be  restricted  by  provision 
as  to  a  sewerage  system,  unless  a 
system  had  been  previously  found 
necessary.  Hartwell  v.  R.  R.  Co.,  40 
O.  S.  155. 

Where  a  system  is  adopted,  fail- 
ure to  provide  plans  and  specifica- 
tions and  estimates  of  expense,  was 
held  not  jurisdictional  and  no  de- 
fense to  sewer  assessments.  Toledo 
f.  R.  R.  Co.,  4  C.  C.  113. 

Discretion  of  council  in  devising 
a  plan  of  sewerage  cannot  be  inter- 
fered with  by  the  court  unless  gross- 
ly abused.  Johnson  v.  Avondale,  1 
C.   C.  229. 

House  connections.— It  was  held 
that  an  act  giving  authority  to  a 
municipality  to  provide  "  a  plan  of 
sewerage  and  drainage  "  would  not 
give  the  municipality  xjower  to  make 
house  connections,  unless  such  house 
connections  were  made  part  of  the 
plans  and  specifications  and  duly 
published.  Cordeman  v.  Cincinnati, 
23  O.  S.  499,  507. 

Tapping  Sewers.— Old  §  2402 
R.  S.,  repealed,  provided  expressly 
for  tapping  sewers  for  private  use. 
But  the  authority  to  construct  and 
maintain  sewers  doubtless  includes 
the  authority  to  provide  by  ordi- 
nance rules  and  regulations  for  tap- 
ping sewers  for  private  use.  In 
paragraph  13  of  §  7  of  the  Code, 
authority  is  given  to  provide  by  or- 
dinance for  licensing  sewer-tappers. 
For  questions  arising  under  former 
laws  as  to  tapping  sewers,  see  State 
ex  rel.  v.  Board,  4  B.,  293;  Herr- 
mann v.  State  ex  rel.,  54  O.  S.,  506 ; 


Springmeyer  v.  State  ex  rel.,  1  C. 
C,  501;  State  v.  Gray  don,  6  C.  C, 
634. 

Municipal  liability. —  Failure  to 
provide  sewers  would  not  make  a 
municipality  liable  for  damages  re- 
sulting from  its  neglect.  Spring- 
field v.  Spence,  39  O.  S.  665,  669; 
Dayton  v.  Taylor's  adm'r,  62  O.  S. 
11. 

Thus,  injury  caused  by  failure  of 
municipality  to  provide  for  carry- 
ing off  surface  water  was  held  not 
to  make  it  liable.     lb. 

Defect  in  plans. —  Nor  will  the 
municipality  be  liable  because  the 
plans  it  has  adopted  are  not  suf- 
ficient or  proper.  The  manner  in 
which  drainage  may  be  accomplish- 
ed is  peculiarly  within  the  discre- 
tion of  the  municipal  corporation 
and  it  cannot  be  called  to  account 
by  the  courts  for  its  errors  of  juag- 
ment  in  the  plans  of  a  public  im- 
provement for  drainage  adopted  by 
it.  Wheeler  v.  Cincinnati,  19  O.  S. 
19,  22;  Dayton  v.  Taylor's  adm'r, 
62  O.  S.  11. 

Negligence    in    constructing.— 

But  for  damages  due  to  negligence 
in  the  construction  of  a  sewer,  the 
municipality  will  be  liable.  Cum- 
mings  v.  Toledo,  12  C.  C.  650;  Co- 
lumbus v.  Jaeger,  36  B.  191 ;  see 
also  Dayton  v.  Taylor's  adm'r,  62 
O.  S.  11,  16. 

But  injuries  resulting  from*  con- 
struction, if  not  caused  by  the  city's 
negligence  in  the  work,  will  not 
make  the  municipality  liable.  Co- 
lumbus v.  Jaeger,  36  B.  191;  Cum- 
mings  v.  Toledo,  12  C.  C.  650.  And 
see  generally,  Cincinnati  v.  Penny, 
21  O.  S.  499. 

Municipality  is  not  liable  for  de- 
stroying, in  the  course  of  construc- 
tion of  a  sewer,  local  drainage  con- 
nections made  without  its  consent. 
Miller  v.  Toledo,  12  C.  C.  706. 


246 


THE  OHIO  MUNICIPAL  CODE. 


[Code  §  77 


Failure  to  keep  in  repair  will 
also  make  the  municipality  liable. 
After  the  construction  of  an  im- 
provement, if  notice  should  be 
brought  home  to  the  municipality 
that  a  street  was  not  reasonably 
safe  because  of  faulty  construction 
of  the  improvement,  it  becomes  the 
duty  of  the  municipality  to  remove 
the  defect  and  its  failure  to  do  so, 
will  make  it  liable  hi  damages  for 
injuries  resulting  from  such  de- 
fect. Dayton  v.  Taylor's  adm'r,  62 
O.  S.  11,  16;  Cincinnati  v.  Frey,  16 
Dec.  77;  3  N.  P.   (N.  S.)   627. 

Pollution  of  water  course  by  a 
municipality  in  discharge  of  its  sew- 
erage will  make  it  liable,  as  an  in- 
dividual would  be  liable.  Cleveland 
v.  Beaument,  4  B.  345 ;  Cilly  v.  Cin- 
cinnati, 2  B.  135;  Mansfield  v.  Bal- 
liett,  65  O.  S.  451;  Rhodes  v.  Cleve- 
land, 10  O.  160. 

Such  pollution,  if  continued  for 
a  period  of  twenty-one  years,  would 
give  municipality  prescriptive  right, 
and  it  will  not  thereafter  be  liable 
to  riparian  owners  for  such  pollu- 
tion. Cleveland  v.  Standard  Bag  & 
Paper  Co.,  72  O.  S.  324;  Tepe  v. 
Norwood,     48     B.     876.       Riparian 


owner  cannot  recover  against  munic- 
ipality damages  for  pollution  if  he 
contributes  to  such  pollution.  Tepe 
v.  Norwood,  48  B.  876  (aff'd,  71  O. 
S.  520);  Kemper  v.  Home,  6  Dec. 
Re.  1049.  See  also  Cleveland  v. 
Standard  Bag  &  Paper  Co.,  72  O.  S. 
324. 

Limitation  of  action. — Action 
against  municipality  for  damages 
growing  out  of  overflow  of  plaintiff's 
lands  from  negligent  construction  of 
municipal  drains,  is  an  action  of 
trespass  and  nuisance  and  four-year 
limitation  is  applicable.  Norwalk 
v.  Blatz,  51  B.  21    (Ed.). 

Injunction  to  restrain  the  mu- 
nicipality from  emptying  sewage 
into  a  stream  to  plaintiff's  injury 
would  lie.  Cilly  v.  Cincinnati,  2  B. 
135. 

Evidence. — Proof  of  adoption  of 
sewerage  system  and  plan  of  dis- 
tricting must  be  made  by  the  ordi- 
nances and  not  by  the  testimony  of 
the  engineer.  Cleveland  v.  Beaument, 
4  B.  345. 

Measure  of  damages  where 
owner's  property  is  injured  by  break 
in  sewer,  see  Toledo  v.  Grasser,  12 
C.  C.  520. 


ORDER  OF  PROCEDURE  IN  SEWER  IMPROVEMENTS  UNDER 
GENERAL  PLAN. 


1.  Adoption  of  general  plan.  Where  it  is  desirable  to  make  sewer  im- 
provements under  a  general  plan  or  system,  council  should,  by  resolution, 
direct  the  engineer  of  the  city  or  village  to  prepare  such  plans,  either  for 
the  whole  municipality  or  for  such  portion  as  council  may  determine. 
<§   77.) 

The  engineer  should  then  prepare  such  plans  observing  the  requirement 
of  §§  78  and  79,  and  report  the  same  to  council. 

2.  Notice  of  completion  of  plan  and  that  the  same  is  ready  for  public  in- 
spection should  be  given  by  publication  for  ten  days.      (§  80.) 

3.  Objection  to  plan  by  persons  interested  may  then  be  filed  with  council, 
and  council  may  thereupon,  amend  the  plan.  (§  81.)  The  plan,  as  orig- 
inally presented  or  as  amended,  as  the  case  may  be,  should  then  be  con- 
firmed by  council  by  ordinance,  setting  out  the  plan,  and  the  plan  should 
be  filed  in  the  office  of  the  auditor  (in  cities)  or  clerk  (in  villages). 

4.  Designation  of -part  to  be  constructed.  Council  should  next,  by  resolu- 
tion, designate  the  part  of  the  general  plan  that  is  to  be  carried  out  in 
the  particular  improvement  to  be  made.  The  resolution  should  show  what 
district,  giving  its  boundaries,  or  what  part  of  a  district,  is  to  be  improved. 
( §  83. )  The  resolution  may  order  the  engineer  to  make  an  estimate  of  the 
cost  of  constructing  sewers  in  accordance  with  the  part  of  the  plan 
designated,  and  report  the  estimated  cost  to  council. 

5.  Resolution  declaring  necessity  of  the  proposed  sewer  improvement  which 
should  contain   ( 1 )   a  statement  of  the  district  or  part  of  district  proposed 


('ode    §    78]  ASSESSMENTS.       SEWERS.  247 

tc  be  improved,  giving  its  boundaries  as  in  the  designated  resolution,  (2) 
The  character  of  the  materials  to  be  used,  (3)  A  statement  that  the  im- 
provement is  to  be  made  in  accordance  with  the  plans  and  specifications  of 
the  engineer,  referred  to  in  the  resolution,  together  with  a  statement  as  to 
place  where  they  are  on  file,  (4)  the  mode  of  payment  for  the  improvement, 
determining  the  proportion  to  be  assessed  and  the  method  of  the  assess- 
ment, as  well  as  the  method  of  payment  of  the  remainder  of  the  costs, 
whether  by  levy  upon  the  general  tax  list  or  by  special  bond  issue.      (§  84.) 

As  to  notice  to  owners,  of  this  resolution,  see  §  60  as  amended,  p.  221. 

5.  Ordinance  to  improve,  which  should  contain  (1)  an  expression  of  coun- 
cil's determination  to  proceed  with  the  improvement,  (2)  a  description 
of  the  district  or  part  of  district  to  be  improved,  as  given  in  the  preceding 
resolution,  (3)  a  statement  of  the  character  of  material  to  be  used,  (4) 
a  statement  that  the  improvement  is  to  be  made  according  to  the  plans 
and  specifications  of  the  engineer,  (5)  The  mode  of  payment  as  in  the  pre- 
ceding resolution,  and  naming  the  lots  and  lands  to  be  assessed,  in  each 
district,  or  part  of  district,  separately.      (§  85.) 

7.  Advertisement  for  bids  and  award  of  contract  as  in  case  of  other  street 
improvements.      (§§  86,  59,  143,   J 44,  198.) 

8.  Certificate  of  Engineer  showing  completion  of  work,  made  to  council. 
(§   87.) 

9.  Assessing  ordinance,  in  conformity  with  ordinance  to  improve,  making 
the  assessment  by  districts  and  giving  the  amount  of  assessment  on  each 
lot  or  land.      (§87.) 

Note. — The  procedure  above  is  only  for  cases  where  council  adopts  a 
general  plan  of  sewerage.  Improvement  by  constructing  sewers  where  no 
general  plan  has  been  adopted,  may  be  made  in  the  manner  provided  in 
§§  50  to  63  inclusive,  relating  to  street  improvements  generally.  (§§ 
77,   88.) 

Sec.  78.  [Sewer  districts.]1  The  plan  so  devised  shall  be 
formed  with  a  view  of  the  division  of  the  corporation  into  as 
many  sewer  districts  as  may  be  deemed  necessary  for  securing 
efficient  sewerage.  Each  of  the  districts  shall  be  designated 
by  a  name  and  number,  and  shall  consist  of  one  or  more  main 
sewers,  with  the  necessary  branch  or  connecting  sewers ;  the 
main  sewers  having  their  outlet  in  a  river,  or  other  proper 
place.2  The  districts  shall  be  so  arranged  as  to  be  independ- 
ent of  each  other,  so  far  as  practicable. 

( 1 )  Old  section  2370  R.  S.,  re-  An  extension,  giving  a  proper  out- 
pealed,  let,  which  was  contemplated  at  the 

( 2 )  Discretion  of  council  in  de-  time  the  sewer  was  built,  would  sat- 
termining  what  is  a  proper  outlet  isfy  the  statute.  Wilson  v.  Cincin- 
cannot    be    interfered    with    by    the  nati,  5  N.  P.  68. 

courts,  unless  grossly  abused.    John- 
son v.  Avondale,  1  C.  C.  229,  232. 


248  the  ohio  municipal,  code.   [Code  §§  79,  80,  81 

Sec.  79.  [How  plan  to  be  prepared.]1  The  plan  shall  be  so 
prepared  as  to  show  the  size,  location,  inclination  and  depth 
below  the  surface  of  all  main  sewers  and  all  branch  sewers 
connected  therewith. 

(1)   Old  section  2374  R.  S.,  repealed. 

Sec.  80.  [Notice  of  completion  of  plans  to  be  advertised.]1 
When  such  plan  of  sewerage  has  been  prepared,  the  council 
shall  give  at  least  ten  days'  notice  2  in  one  newspaper  of  gen- 
eral circulation  in  the  corporation,  stating  that  such  plans 
have  been  prepared  and  are  filed  in  the  office  of  the  clerk  for 
examination  and  inspection  by  parties  interested. 

(1)  Old  section  2375  R.  S.,  re-  risdictional  under  former  statutes, 
pealed.  and  did  not  invalidate  assessments. 

(2)  Necessity  of  notice. —  Omis-  Cincinnati  v.  Honnigfort,  32  B.  32; 
sion  to  advertise  was  held  not  ju-  Columbus  v.  Bohl,    13   Dec.   569;    1 

N.  P.   (N.  S.)  469. 

FORM  OF  NOTICE  OF  COMPLETION  OF  PLAN  FOR  SEWERAGE. 

Legal  Notice. 

Notice  is  hereby  given  that  plans  for  the  sewerage  of  the  city  [or  village] 

of [or  for  the  sewerage  of  the  following 

described  territory  of  the  city,  or  village  of (here  describe  part 

of  municipality  designated  by  council)],  have  been  prepared  and  are  now 
on  file  in  the  office  of  the  clerk  of  the  city  [or  village]  for  examination  and 
inspection  by  parties  interested,  and  any  objection  thereto  may  be  filed 
with  council. 

>19 .... 

By  order  of  the  Council  of  the  City 
[or  Village]    of.      


Clerk. 

Sec.  81.  [Objections  to  plans.]1  Any  objection  to  said 
plan  of  sewerage  shall  then  be  made  to  the  council,  and  it  may, 
if  it  deem  proper,  amend  or  correct  the  same,  and  shall  there- 
upon file  the  plans  as  amended,  or  if  no  amendments  be  made, 
then  the  original  plans,  duly  certified  by  it  in  the  office  of 
the  auditor  or  clerk. 

(1)   Old   section  2376  R.  S.,  repealed. 


CV'-ie  §§  82, 88]  assessments,     sewers,  9A% 

Sec,  82.  [Amendment  of  plans,  etc.]1  Council  shall  have  the 
right  at  any  time  after  the  construction  of  all  or  a  part  of  the 
sewers  provided  for  by  such  plan  of  sewerage  to  amend  such 
plans,  by  providing  for  such  intercepting  sewers,  without  re- 
gard to  sewer  districts,  as  shall  be  necessary  to  furnish  an  ad- 
ditional outlet  for  the  system  so  adopted,  and  to  provide  for  the 
construction  of  the  same  as  is  provided  in  this  subdivision, 
and  apportion  the  cost  and  expense  thereof,  equally  among  the 
districts  directly  or  indirectly  sewered  in  whole  or  in  part 
thereby,  and  assess  and  collect  the  amount  apportioned  to  each 
district  as  provided  in  this  subdivision ;  or  the  council  may 
apportion  a  part  only  of  such  cost  and  expense  among  the  dis- 
tricts directly  or  indirectly  sewered  in  whole  or  in  part  thereby, 
and  provide  for  the  payment  of  the  residue  thereof  by  the 
city  at  large.  The  council  may  also  amend  such  plans  by  mak- 
ing new  sewer  districts,  or  by  subdividing  districts  already  es- 
tablished, giving  a  name  and  number  thereto,  and  provide  for 
the  construction  of  the  main  and  branch  sewers  therein,  and 
may  assess  the  cost  and  expense  thereof  upon  the  lots  and  lands 
within  the  corporation  according  to  benefits. 

(1)   Old  section  2376  R.  S.  repealed. 

Sec.  83.  [Engineer  to  estimate  costs,  etc.]1  After  such  plans 
have  been  adopted  and  approved,  as  heretofore  provided,  the 
council  shall  designate  such  portions  of  the  work  as  may  be 
required  for  immediate  use,  and  the  designation  shall  be  by  dis- 
tricts, and  shall  show  what  districts  or  part  thereof,  is  to  be  im- 
proved; and  the  council  may  order  the  engineer  to  make  an 
estimate  of  the  cost  and  expense  of  constructing  the  work,  or 
such  portions  thereof  as  may  have  been  designated  in  accord- 
ance with  the  last  section,  according  to  such  plans,  and  report 
the  same  to  council.2 


250  the  ohio  municipal  code.  [Code  §  84 

(1)  Old  section  2373  and  2377  Curative  provisions  of  §  2289  and 
R.  S.,  repealed.                                            2327  R.  S.  held  to  extend  to  irreg- 

(2)  Necessity  of  estimate. —  ularities  or  defects  in  the  estimate 
Failure  to  cause  estimate  to  be  made  of  cost  for  sewerage.  Wewell  v. 
held   not   a   defense   to    assessment.       Cincinnati,  45   O.   S.  407. 

Toledo  v.  Ry.,  4  C.  C.  113. 

Sec.  84.  [Resolution  of  necessity  and  notice  thereof.]1  When 
it  is  deemed  necessary  by  a  city  or  village  to  construct  all  or  a 
part  of  the  sewers  provided  for  in  said  plan,  the  council  shall 
declare  by  resolution  the  necessity  of  such  improvement.2  Said 
resolution  shall  contain  a  declaration  of  the  necessity  of  said 
improvement,  a  statement  of  the  district  or  districts  or  parts 
thereof  proposed  to  be  constructed,  the  character  of  the  ma- 
terials to  be  used,  a  reference  to  the  plans  and  specifications, 
where  the  same  are  on  file,  and  the  mode  of  payment  therefor, 
and  the  council  shall  cause  the  resolution  to  be  published  once 
a  week  for  not  less  than  two  nor  more  than  four  consecutive 
weeks  in  one  newspaper  of  general  circulation  in  the  corpora- 
tion.3 

(1)  Old  section.— Compare  §  (3)  Published  notice. —  Where 
2378  R.  S.  (repealed)  requiring  only  published  notice  describes  property 
the  ordinance  to  improve.  But  old  by  streets  and  omits  certain  streets, 
§  2304  R.  S.  (repealed)  required  and  these  streets  were  also  omitted 
resolution  of  necessity  for  all  pub-  in  the  resolution, —  as  to  validity  of 
lie  improvements.  assessment  on  such  streets,  see  Cin- 

(2)  Necessity,   object,   etc.,    of  cinnati  v.  Honnigfort,  32  B.  32. 
resolution. —  See  notes  to  §   51  of  Notice    to    owners. —  See    Code 
the   Code,  p.  183.  §  60  as  amended,  p.  221. 

FORM  OF  RESOLUTION  DECLARING  NECESSITY. 
Resolution 

Declaring  it   necessary  to   construct   sewers   in   district [or 

part    of    district }    or   district    consisting    of    territory   bounded 

]. 

Be  it  resolved  by  the  council  of  the  city  [or  village]  of ,  State 

of  Ohio, 

That  it  is  necessary  to  construct  all  [or  a  certain  part  hereinafter  de- 
scribed]   of  the   sewers  provided   for  in   a  general  plan  for   a   system  of 


Code    §    85]  ASSESSMENTS.       SEWERS.  251 

sewerage,  for  said  city  [or  village]  (or,  if  the  plan  was  for  a  part  only,  of 
the  municipality,  then  say  u  for  the  territory  bounded  as  follows,"  inserting 
boundaries  in  general  plan)  which  general  plan  was  adopted  by  council  on 

the day  of ,   19.  .  .,  and  is  now  on  file  in  the  office  of  the 

auditor  of  said  city  [or  clerk  of  said  village] ;  and  that  the  portions  of  the 
work  provided  for  in  said  general  plan,  which  it  is  hereby  determined  to 
construct  are  as  follows:  (here  describe  by  districts  or  parts  of  districts, 
the  territory  that  is  to  be  improved,  giving  the  boundaries  of  each  district 
or  part  of  district  included,  following  the  description  in  the  resolution 
designating  the  part  to   be  improved). 

Be  it  further  resolved,  that  said  sewers  shall  be  constructed  in  accord- 
ance with  plans  and  specifications,  on  file  in  the  office  of  the  auditor  of 

said  city  [or  clerk  of  said  village]  and  shall  be  of (here 

insert  materials  to  be  used). 

Be  it  further  resolved,  that  the  costs ( here  follow  §§  4  and  5 

of  form  of  resolution  to  improve  under  §  51  of  the  Code). 

Be  it  further   resolved,  that  the  clerk  be  and  he   is  hereby  directed  to 
cause  this  resolution  to  be  published  in  the  manner  provided  by  law. 

Passed ,  19 . . . 

Attest :  ^fe. 


Clerk.  President  of  Council. 

Sec.  85.  [Ordinance  authorizing  construction;  what  to  con- 
tain.]1 After  the  publication  of  said  notice,  the  council  shall 
determine  whether  it  shall  proceed  with  the  proposed  improve- 
ment or  not,  and  if  it  decides  to  proceed  therewith,  an  ordi- 
nance for  the  purpose  shall  be  passed.2  Said  ordinance  shall 
contain  a  statement  of  the  district  or  districts  or  parts  thereof 
proposed  to  be  constructed,  the  character  of  the  material  to 
be  used,  a  reference  to  the  plans  and  specifications,  the  mode 
of  payment  therefor,  and  said  ordinance  shall  provide  for  as- 
sessing the  cost  and  expenses  of  the  improvement  upon  the  lots 
and  lands  in  each  district  as  other  assessments  are  levied,  and 
the  lots  and  lands  in  each  district  shall  be  assessed  by  districts, 
except  that  the  cost  of  the  construction  of  any  main  sewer 
which  serves  as  a  common  outlet  for  two  or  more  districts  shall 
be  apportioned  between  the  districts,  and  the  cost  assessed  ^n 
the  lots  and  lands  in  the  respective  districts  in  proportion  to  the 
benefits  accruing  thereto.3 


252 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    85 


(1)  Old  section  2378  R.  S.,  re- 
pealed, and  see  old  §§  2372  and 
2379   R.    S.,   repealed. 

(2)  Ordinance   to   construct. — 

Time  of  passage.  An  ordinance 
passed  prematurely  was  held  not  in- 
valid. Since  failure  to  publish  the 
preliminary  resolution  is  a  uefect 
covered  by  the  curative  statutes,  an 
ordinance  passed  before  that  publi- 
cation is  complete,  would  not  be  fa- 
tally defective.  Toledo  v.  Ry.  Co., 
4  C.  C.  113. 

Defect  in  ordinance,  such  as 
omitting  to  name  one  of  the  streets 
for  a  sewer,  was  held  to  be  within 
the  curative  provisions.  Davis  v. 
Cincinnati,   1   B.,    104. 

Written  notice  to  owners. — 
§  51  of  the  Code  provides  certain 
things  that  shall  be  done,  where  it 
is  deemed  necessary  to  make  "  any 
public  improvement."     §  52  requires 


that  a  notice  of  the  ordinance  re- 
quired in  §  51  shall  be  served  on 
the  owners  of  property  to  be  as- 
sessed. The  sections  of  the  Code  re- 
lating to  construction  of  and  assess- 
ment for  sewers  as  part  of  a  sys- 
tem make  no  mention  of  service  of 
written  notice.  Construction  of  and 
assessment  for  sewers  as  a  part  of 
a  sewer  system  were  (under  former 
laws)  held  to  be  distinct  from  other 
street  improvements  and  hence  to 
have  been  separately  and  completely 
provided  for.  Cincinnati  v.  Wewell, 
16  B.  287;  see  further  Nitzel  v.  St. 
Bernard,  3  N.  P.  317. 

(3)  Assessment  by  districts, 
provided  for  also  by  former  laws, 
was  held  not  jurisdictional,  and  an 
assessment  for  a  sewer  in  parts  of 
two  districts  was  held  valid  under 
previous  statutes.  Cincinnati  v. 
Honnigfort,  32  B.  32. 


FORM  OF  ORDINANCE   AUTHORIZING  CONSTRUCTION. 
Ordinance   No 


Determining  to  proceed  with  the  construction  of  sewers  in  district 

[or   part    of    district ,    or    district    consisting    of    territory 

bounded ] . 

Be  it  ordained  by  the  council  of  the  city  [or  village]  of ,  State 

of  Ohio, 

Sec.  1.  That  it  is  hereby  determined  to  proceed  with  the  construction 
of  sewers  in  the  district  [or  districts  or  part  of  district]  bounded  and 
described  as  follows:  (here  copy  boundary  of  district  as  given  in  the  reso- 
lution of  necessity),  pursuant  to  a  resolution  passed  on  the day  of 

,    19...,   and   in   accordance  with   the  plans  and   specifications 

heretofore  prepared  by  the  engineer  of  said  city  [or  village]  for  a  system 

of  sewerage  therein  [or  in  said  district],  adopted  by  council  on  the 

day  of ,  19...,  and  now  on  file  in  the  office  of  the  auditor  of 

said  city  [or  clerk  of  said  village],  and  to  be  of (here  insert 

materials  to  be  used ) . 

Sec.  2.     That  the  cost (here  repeat  mode  of  payment  for  the 

improvement,  as  determined  in  the  resolution  of  necessity). 

Sec.  3.  That  the  following  lots  and  lands  shall  be  assessed  for  said 
improvement,  as  above  determined: 

In  district 


Code  §§  86,  87]        assessments,     sewers.  253 


Streets. 


Lot  Numbers. 


Sec.  4.  (In  cities)  That  the  board  of  public  service  be  and  hereby  is 
authorized  and  directed  to  make  and  execute  a  contract  for  the  construction 
of  said  improvement  with  the  lowest  and  best  bidder,  after  advertisement, 
according  to  law. 

Or, 

Sec.  4.  (In  villages)  That  the  clerk  be  and  hereby  is  authorized  and 
directed  to  advertise  for  bids  for  the  construction  of  said  improvement 
according  to  law. 

Sec.  5.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed . . .  • ,  19 . . . 

Attest : 


Clerk.  President  of  Council. 

Sec.  86.  [How  contract  let]  The  work  shall  be  advertised, 
and  the  contract  shall  be  awarded  to  the  lowest  and  best  bidder, 
in  the  manner  heretofore  provided  for  the  improvement  of 
streets.1 

( 1 )  See  §  59  of  the  Code.  As  to  tract  under  former  laws,  see  Gano  v. 
-hanges  or  alterations  in  sewer  con-       Eshelby,  21  B.  177. 

Sec.  87.  [Ordinance  for  assessment  of  costs;  bonds  in  anticipa- 
tion of  collection  of  assessments.]  Council  may,  if  it  deems 
expedient,  by  ordinance  assess  the  real  estate  as  provided  in 
the  ordinance  to  improve,  and  cause  such  assessments  to  be 
collected,  or,  at  its  option,  may  issue  bonds  in  anticipation  of 
the  collection  of  such  assessments,  before  the  work  is  done  or 
contracted  for.  Or  council  may,  at  its  option,  delay  such 
assessments  until  the  work  is  completed,  and  then,  upon  the 
certificate  of  the  engineer  showing  the  completion  of  the  work, 
by  ordinance  assess  the  real  estate  as  provided  in  the  ordinance 
to  improve.1  Any  person  so  assessed  shall  have  the  option  of 
paying  his  proportion  of  the  assessment  in  cash  within  the 
period  of  thirty  days  from  the  date  of  the  levy  thereof  upon 
due  notice  being  given.  [1904,  March  25,  97  v.  51,] 


254 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    87 


(1)  Assessment.  —  The  assess- 
ment is  to  be  made  as  provided  in 
the  ordinance  to  improve  and  must 
be  levied  as  other  assessments  are 
levied.     See  §  50  et  seq. 

Installments. —  It  was  held  that 
sewer  assessments  might  be  made  on 
the  installment  plan  though  the 
section  relating  to  sewers  did  not 
expressly  so  provide.  Nitzel  v.  St. 
Bernard,  3  N.  P.  317. 

Miscellaneous. —  The  cost  of 
sewers  on  several  streets  may  be 
added  together  and  the  assessment 
made  equally  on  all  the  lands  adja- 
cent to  the  several  streets.  John- 
son v.  Avondale,   1  C.  C  229. 

It  was  held  under  former  statute 
that  assessing  district  need  not  be 
established  in  assessment  for  trurk 
sewer.  Wilson  v.  Cincinnati,  5  N. 
P.  68. 

Street  and  sewer  improvements 
cannot  be  assessed  in  one  assess- 
ment. Nitzel  v.  St.  Bernard,  3  N. 
P.   317. 

As  to  validity  of  sewer  assess- 
ment on  property  abutting  on  one 
side  of  the  street  only,  see  Toledo 
v.  Beaumont,  3  N.  P.  287. 

Intersections. —  It  was  held  un- 
der former  laws  •  that  the  rule  that 
intersections  must  be  paid  for  by 
the  city  does  not  apply  to  sewer  as- 
sessments. Cincinnati  v.  Wewell, 
16  B.  287.     But  :ee  §  53  of  the  Code. 

Corner  lots. —  The  corner  lot  doc- 
trine applies  to  sewer  assessments 
and  corner  lots  are  assessable  only 
for  the  narrow  frontage.  Blanchard 
v.  Columbus,  35  B.  1 ;  Cincinnati  v. 
Honnigfort,  32  B.  32.  See  generally 
as  to  assessment  of  property  abut- 
ting on  more  than  one  street,  Cin- 
cinnati v.  Wewell,  16  B.  287. 

Property  subject  to  assessment. 

—  Farming  property.  Toledo  v. 
Andrews,  18  C.  C.  861. 

Wharf  property  is  liable  for  sew- 
erage. Boeres  v.  Strader,  1  C.  S. 
C.  R.  57. 

Limitation      of  assessments. — 


The  former  limitation  to  percentage 
of  value  of  land  in  the  general  as- 
sessment laws  was  held  to  apply  to 
sewer  assessments.  Cincinnati  v. 
Connor,  55  0.  S.  82.  See  further  § 
53  and  note  "  Separate  improve- 
ments "  on  page  203. 

What  costs  and  expenses  in= 
eluded. —  Assessment  held  not  void 
because  it  included  the  cost  of  board 
sheeting  used  in  making  the  sewer, 
although  •  the  proceedings  did  not 
provide  for  such  expense.  Hastings 
v.  Columbus,  42  0.  S.  585.  See  Cin- 
cinnati v.  Anchor  White  Lead  Co., 
44  O.  S.  243. 

Assessment  cannot  include  cost  of 
material  not  in  fact  used  in  the 
sewer  construction.  Toledo  v.  Beau- 
mont, 3  N.  P.  287. 

Assessment  for  house  connections 
up  to  the  line  of  the  street.  See 
Toledo  v.  Andrews,  18  C.  C.  861. 

Cost  of  advertising  and  pay  of  su- 
perintendent may  be  included.  Cin- 
cinnati v.  Wewell,  16  B.  287. 

Defense  to  assessment. —  Claim- 
ing no  benefit. —  No  defense  to  a 
sewer  assessment  that  the  lots  were 
below  the  level  of  the  sewer  or  that 
the  sewer  was  too  small  and  was 
therefore  of  no  benefit.  City  v.  Mc- 
Dermott,  2  B.  240;  Hildebrand  v. 
Toledo,  27  C.  C.  427;  6  C.  C.  (N.  S.) 
450;  Ford  v.  Toledo,  64  0.  S.  92. 

No  defense  to  assessment  that  the 
sewer  was  no  benefit  to  property 
owner's  lot,  Conner  v.  Cincinnati, 
11  C.  C.  336.  Nor  that  owner's  lot 
was  six  feet  below  the  sewer.  To- 
ledo v.  Kohn,  2  N.  P.  47 ;  nor  that 
the  owner's  cellars  were  deeper  than 
the  sewer,  Cincinnati  v.  Bickett, 
26  0.  S.  49;  nor  that  the  owner's 
lot  is  a  wharf  on  a  river  bank  and 
is  the  lowest  ground  of  all,  Boeres 
v.  Strader,  1  C.  S.  C.  R.  57,  60. 

Defect  in  proceedings. —  Omis- 
sion of  some  of  the  abutting  feet 
from  the  assessment  is  no  defense 
where  plaintiff's  assessment  was  not 
thereby  increased.  Wilson  v.  Cin- 
cinnati, 5  N.  P.  68. 

See  also  as  to  omissions  and  de- 
fects which  are  not  a  defense  to  as- 


Code  §§  88,  89]        assessments,     sewers.  255 

sessment.     Wewell  v.  Cincinnati,  45  It  is  no  defense  to  a  sewer  assess- 

0.    S.    407,     (omission   to    construct  ment  that  other   property  benefited 

sewer  in  street  embraced  in  plan)  ;  has  not  been  assessed  where  it  ap- 

Toledo  v.  Railway  Co.,  4  C.  C.  113,  pears  that  such  other  property  is  ex- 

( failure  to  provide  plans  and  speci-  empt  because  already  supplied  with 

n  cations  and  estimate  of  expense)  ;  local  drainage.    Toledo  v.  Potter,  10 

Cincinnati  v.  Honnigfort,  32  B.  32,  C.  C.  661. 

(omission  of  a  street  in  advertising  Set=off. —  There  can  be  no  set-oil' 

plan)  ;  Davis  v.  Cincinnati,  1  B.  104,  against  sewer  assessment  because  of 

(omitting  to  name  one  of  the  streets  material      furnished      by      property 

in   the  ordinance.)  owner  to  contractor.     Wilson  v.  Cin- 

Uniformity. —  Owner  has  no  de-  cinnati,  5  N.  P.  68. 

tense  to  assessment  because  of  fail-  Defense    of    local     drainage. — 

ure  to  assess  all  the  abutting  lots  See  notes  to  §  53  of  the  Code, 

unless   his   assessment   was    thereby  Form    of    assessing    ordinance 

increased.     His    remedy    is    to    en-  for     sewer     improvement     may     be 

join  the  levy  of  increased  taxes  due  adapted  from  form  of  assessing  or- 

to  failure  to  make  assessment.  Wil-  dinance  under  g  55  of  the  Code,  p.  204. 

son  v.  Cincinnati,  5  N.  P.  68.  And  see  requirements  in  $  85  above. 


Sec.  88.  [Council  may  provide  for  construction  of  sewers  with- 
out adopting  any  plan  of  sewerage  or  dividing  city  into  districts.  ] 1 
The  council  may,  if  in  its  opinion  expedient,  provide  for  the 
construction  of  main  drains  and  branch  drains  connecting  there- 
with without  previously  adopting  any  plan  of  sewerage  or  divi- 
sion of  the  territory  of  the  municipal  corporation  or  any  part 
thereof,  into  districts,  and  may  assess  the  cost  and  expense 
thereof  upon  such  lots  or  lands  as  shall  be  designated  in  the 
ordinance  to  improve,  or  the  same  may  be  paid  out  of  the 
sewer  fund,  or  by  the  municipal  corporation  at  large,  as  council 
shall  determine,  and  such  proceedings  shall  be  had  in  respect 
to  such  improvements  and  assessments  as  are  provided  for  in 
this  subdivision  for  the  construction  of  main  or  branch  sewers 
according  to  a  previously  adopted  plan. 

(1)   Old  section  2371  R.  S.,  repealed. 

Sec.  89.  [Councils  of  two  or  more  municipalities  authorized  to 
construct  joint  sewers;  procedure.]1  The  respective  councils  of 
any  two  or  more  municipal  corporations  shall  have  power  to 


256  the  ohio  municipal  code.  [Code  §  89 

provide  for  the  construction  of  a  main  sewer  and  branches 
jointly  by  such  corporations  for  the  purpose  of  sewering  and 
draining  such  corporations  or  any  part  thereof,  and  to  agree  up- 
on the  plan  and  location  of  such  main  sewer,  and  the  terms 
and  conditions  on  which  the  same  shall  be  constructed  and 
maintained  for  common  use,  and  the  portion  of  the  cost  and 
expense  thereof  to  be  paid  by  each  corporation.  For  this  pur- 
pose said  corporations  may  jointly  appropriate  land  either 
within  or  without  their  respective  corporations.  The  council 
of  each  corporation  shall  provide  for  assessing  such  portion  of 
the  cost  and  expenses  of  constructing  any  such  main  sewer  or 
drain  as  it  shall  determine  to  be  a  proper  charge  upon  the  lots 
and  lands  within  such  respective  corporations  benefited  thereby, 
and  the  excess  over  the  assessment  herein  authorized  shall  be 
paid  out  of  the  sewer  fund  of  the  corporations  respectively; 
or  if  the  corporations  or  either  of  them  are  divided  into*  sewer 
districts,  out  of  the  sewer  fund  of  the  district  or  districts  direct- 
ly or  indirectly  sewered  in  whole  or  in  part  thereby;  and  in 
case  more  than  one  district  is  so  sewered  thereby,  the  council 
shall  apportion  the  amount  to  be  paid  by  each  district  or  as- 
sessed against  the  property  therein,  or  the  said  councils,  or 
either,  may  determine  to  place  the  whole  cost,  or  any  part 
thereof,  upon  the  general  duplicate;  and  bonds  may  be  issued 
by  either  or  both  of  said  corporations  to  provide  for  the  pay- 
ment of  the  cost  and  expense  thereof  as  is  provided  in  this 
subdivision,  and  the  proceedings  for  the  construction  of  such 
main  sewer  or  drain,  shall,  so  far  as  applicable,  be  conducted 
according  to  the  provisions  of  this  subdivision.  The  adver- 
tisement for  bids  for  the  construction  thereof  shall  be  joint, 
and  shall  be  filed  with  the  clerk  of  council,  and  the  same  shall 
be  reported  to  the  council  of  each  corporation.  Any  contract 
made  for  the  construction  of  such  sewer  shall  be  in  the  names 
of   such   corporations   jointly,   but   each   corporation    shall   be 


Code  §§  90,  91,  92]  assessments,     sewers.  257 

liable  only  for  such  portion  of  the  cost  and  expense  as  shall 
be  specified  in  the  ordinances  providing  for  the  same. 
(1)    Old   section    (2406-120)    K.  S.,  repealed. 

Sec.  90.  [Joint  management  of  such  system.]  1  Said  main 
sewer  or  drain,  branches  and  appurtenances,  on  completion, 
shall  be  the  property  of  said  corporations  jointly,  and  said  cor- 
porations may  take  all  necessary  steps  to  keep  the  same  in 
proper  repair  and  condition  and  to  protect  the  same  from  dam- 
age and  improper  use.  Said  corporations  shall  have  the  pow- 
er by  ordinance  jointly  passed,  to  prescribe  the  terms  and  con- 
ditions, including  the  price  to  be  paid  therefor,  upon  which 
other  municipal  corporations,  public  institutions  or  individuals, 
may  connect  with  and  use  such  main  sewer  or  drain,  and  the 
disposition  of  the  fund  arising  therefrom.2 

(1)   Old   sections.     Compare    §§  (2)   Tapping  sewers.     See  note 

(2406-146)    and    (2406-147)    R.   S.,       to  §  77  of  the  Code,  p.  245. 
repealed. 

Sec.  91.  [Council  may  borrow  money  for  construction  of  sew- 
ers.]1 The  council  of  any  city  or  village  shall  have  power  to 
borrow  money,  at  a  rate  of  interest  not  exceeding  six  per  centum 
per  annum,  to  pay  the  cost  and  expense  of  constructing  the 
main  sewers,  main  drains,  branches  and  ditches  provided  for 
in  this  subdivision. 

( 1 )    Old  section. —  Compare   §   2380  R.   S.,   repealed. 

Sec.  92.  [Council  may  provide  for  construction  and  mainte- 
nance of  sewer  pumping  stations,  etc.]1  The  councils  of  cities 
and  villages,  in  accordance  with  the  provisions  of  this  title,  may 
provide  for  the  construction  and  maintenance  of  such  sewer 
pumping  stations,  and  equip  the  same  with  the  necessary  ma- 
chinery and  apparatus  and  provide  the  necessary  buildings 
therefor,  as  the  council  shall  deem  necessary. 

(1)   Old     section.       Compare     §(2406-121)    R.  ■  S.,   repealed. 


258  the  ohio  municipal  code.       [Code  §§  93,  94 

Sec.  93.  [Sewage  farm.] 1  Power  and  authority  is  hereby 
granted  to  any  city  or  village  to  purchase  and  hold  land  outside 
of  the  corporate  limits,  to  be  used  as  a  sewage  farm,  to  con- 
struct and  maintain  thereon  all  the  necessary  appliances  for 
the  proper  disposition  of  the  sewage  of  such  city  or  village, 
under  such  rules  and  regulations  as  shall  be  prescribed  by 
council  and  approved  by  the  state  board  of  health.2 

(1)  Old  section.  Compare  §  — See  §  7,  paragraphs  19  and  25; 
(2406-105)  R.  S.,  repealed.  §  10,  paragraph  tenth,  and  §  11  of 

(2)  Sewage  plants  and  farms.      the  Code. 

(h)  Miscellaneous  Provisions. 

Sec.  94.  [All  assessments  subject  to  certain  sections  of  Revised 
Statutes.]  All  assessments  provided  for  in  this  act  shall  be  sub- 
ject to  the  provisions  of  sections  2268,  2278,  2279,  2282,  2284, 
2285,  2286,  2287,  2288,  2289,  2290,  2291,  2294,  2295,  2297, 
2298,  2299,  2300,  2302,  2318,  2321,  2326,  2327  and  2332 
of  the  Revised  Statutes  of  Ohio,  so  far  as  the  same  may  be 
applicable,  and  such  sections  shall  be  and  remain  in  full  force 
and  effect. 

[When  special  assessments  to  be  certified  to  county  auditor ;  how 
collected;  when  such  assessments  to  be  collected  by  municipal 
treasurer.]1  Whenever  any  special  assessment  is  made  as  here- 
in provided,  and  the  same  has  been  confirmed  by  council  and 
bonds,  notes,  or  certificates  of  indebtedness  of  the  corporation 
are  issued  in  anticipation  of  the  collection  thereof,  it  shall  be 
the  duty  of  the  clerk  of  the  council,2  on  or  before  the  second 
Monday  in  September,  annually,  to  certify  such  assessment  to 
the  county  auditor,  stating  the  amounts  and  the  time  of  pay- 
ment, and  in  accordance  therewith  the  county  auditor  shall  place 
the  same  upon  the  tax  list,3  and  the  county  treasurer  shall  col- 
lect the  assessment  in  the  same  manner  as  other  taxes  are 
collected,  and  when  collected  he  shall  pay  the  same  to  the  treas- 


Code  §  94]       assessm'ts.    miscellaneous  provisions. 


259 


urer  of  the  corporation  to  be  by  him  applied  to  the  payment  of 
such  bonds,  notes,  or  certificates  of  indebtedness  and  interest 
thereon,  and  for  no  other  purpose;  and  for  the  purpose  of 
enforcing  the  collection  of  the  assessment  the  county  treasurer 
shall  have  the  same  power  and  authority  now  allowed  by  law 
for  the  collection  of  state  and  county  taxes.  In  all  other 
cases,  such  assessment  shall  be  paid  to  and  collected  by 
the  treasurer  4  of  the  municipality,  and  in  any  event  it  shall 
be  the  duty  of  the  clerk  of  the  council,  when  the  receipt  is  pre- 
sented to  him  by  the  owner,  showing  the  payment  of  any  as- 
sessment on  his  property  to  enter  such  receipt  on  the  margin 
of  the  record  of  the  assessment. 


(1)  Old  section  2296  R.  S.,  re- 
pealed. 

(2)  In  cities,  where  assessment 
books  may  be  conveniently  kept  by 
the  auditor,  such  installments  may 
be  by  him  reported  to  the  clerk  of 
council  and  certified  by  the  latter. 

(3)  Prima  facie  valid. —  An  as- 
sessment on  the  tax  duplicate  is 
presumptively  valid  and  the  burden 
is  on  the  property  owner  to  show  in- 
validity. Murphy  v.  Sims,  13  Dec. 
62.  See  also  Bolton  v.  Cleveland, 
35  O.   S.  319. 


Placing  on  duplicate. —  Where 
tract  of  land  is  cut  in  two  by  im- 
provement, whole  assessment  must 
not  be  put  on  whole  tract  on  the 
duplicate,  but  on  separate  parcels. 
Spangler  v.  Cleveland,  35  O.  S.  469. 

Nor  should  whole  assessment  be 
put  on  one  of  the  lots.  Younglove  v. 
Hackman,  43  O.  S.  69. 

(4)  Paid  to  treasurer. —  The 
above  provision  would  seem  to  for- 
bid assignments  of  assessments  to 
contractors.  But  see  §  2285  R.  S., 
re-enacted,  infra. 


FORM  OF  CERTIFICATE  TO  AUDITOR  OF  ASSESSMENTS. 
Office  of  the  Clerk  of  Council  of  the  City  [or  Village]  of 


To  the  Auditor  of County,  Ohio: 

I  hereby  certify  that  the  special  assessments  hereinafter  set  forth  have 

been  duly  levied  by  the  council  of  the  city  [or  village]  of upon 

the  lots  and  lands  described  below,  and  are  herewith  certified  to  you, 
as  provided  by  law  to  be  placed  upon  the  tax  list  and  collected  as  other 
taxes  are  collected: 


Owner 


No.  and  sub-division 
or  other  description  of  lot. 


Amount  As- 
sessed. 


260  the  ohio  municipal  code.  [Code  §  94 

Witness  my  hand  and  official  seal  this day  of ,  19.  .  . 

(Seal.)  Clerk  of  the  Council  of  the  City  [or  Village]  of 


Sec.  2268  R.  S.  [Assessment  on  owner  of  life  estate.]  When 
a  special  assessment  is  made  on  real  estate  subject  to  a  life  es- 
tate, the  assessment  shall  be  payable  by  the  tenant  for  life ; 
but  upon  application  by  the  life  tenant  to  a  court  of  competent 
jurisdiction,  by  action  against  the  owner  of  the  estate  in  fee, 
such  court  may  apportion  the  cost  of  the  assessment  between 
the  life  tenant  and  the  owner  in  fee,  in  proportion  to  the  rela- 
tive value  of  the  improvement  to  their  estates,  respectively,  to 
be  ascertained  and  determined  by  the  court  on  principles  of 
equity.1      [67  v.  80,  §  541.] 


(1)  In  partition  case,  the  pro- 
vision of  this  section  will  be  applied 
and  payments  already  made  prop- 
erly charged.  Ward  v.  Ward,  9 
C.   C.  454. 

Apportionment    is    according    to 


proportionate  benefit,  not  actual 
benefit.  Crawford  v.  Crawford,  4 
Dec.    (Re)    138. 

See  further  Cook  v.  Gilpin,  2  B. 

82. 


Sec.  2278  R.  S.  [Notice  of  assessment  to  be  published.] 
Before  adopting  the  assessment  so  made,  the  council  shall  pub- 
lish notice  for  three  weeks  consecutively,  in  some  newspaper  of 
general  circulation  in  the  corporation,  that  such  assessment  has 
been  made,  and  that  the  same  is  on  file  in  the  office  of  the  clerk 
for  the  inspection  and  examination  of  persons  interested  there- 
in.1     [66  v.  248,  §  585;  (S.  &  S.  833).] 


( 1 )   Application  of  section. —  § 

2278  R.  S.,  above,  applies  to  assess- 
ments by  benefits.    This  section  and 

2279  R.  S.,  following,  if  appropri- 
ately placed  in  the  Code,  should  fol- 
low §  68,  supra  (which  is  substan- 
tially a  re-enactment  of  ofd  §  2277 
R.  S.)  and  should  precede  §  69,  su- 
pra, (which  is  substantially  a  re- 
enactment  of  old  §  2280  R.  S.).  The 
special  method  provided  for  assess- 
ments by  benefits  was  formerly  con- 
tained in  §§  2277,  2278.  2279.  2280, 
2281  a^d  2282  R.  S.  The  rew  Code 
repeals  §§  2277  and  2280  and  incor- 
porates   their    provisions    in    §§    68 


and  69,  respectively,  omitting  the 
classification  of  municipalities;  re- 
peals the  unimportant  §  2281,  with- 
out substituting  anything  in  its 
place,  and  then  in  the  final  section 
on  assessments  (§  94,  supra)  re- 
enacts  §§  2278,  2279  and  2282  of 
the  old  law  of  assessments  by  bene- 
fits, together  with  other  sections 
of  the  revised  statutes  governing  as- 
sessments in  general.  Tn  the  pres- 
ent edition  of  the  Code  these  sec- 
tions of  the  new  act  and  old  sec- 
tions of  the  revised  statutes  re-en- 
acted are  printed  in  the  order  in 
which  they  appear  in  the  bill  as  it 


Code  §  94]        assessm'ts.    miscellaneous  provisions.      261 

passed  the  General  Assembly.  In  dition  precedent  to  the  levying  of 
the  matter  of  assessments  by  bene-  assessments,  where  no  damages 
tit,  confusion  may  be  avoided  by  re-  caused  by  the  improvement  were  in- 
ferring to  the  "  Order  of  Procedure  "  eluded  in  the  assessment.  Finnell 
given  under  §  68,  supra,  where  the  v.  Kates,  19  0.  S.  405. 
various  steps  in  such  assessments  Effect  of  notice. —  After  notic* 
and  a  reference  to  the  laws  in  force  of  the  assessment  is  given,  all  per- 
with  respect  to  each  may  be  found.  sons  interested  are  bound  to  take 
Necessity  of  notice. —  Under  notice  of  the  subsequent  proceedings, 
former  sections  it  was  held  that  the  Chamberlain  v.  Cleveland,  34  O.  S. 
publication  of  notice  was  not  a  con-  551. 

FORM   OF    NOTICE   OF   ASSESSMENT. 
Legal  Notice. 

Notice  is  hereby  given  that  the  estimated  assessment  of  the  cost  of  im- 
proving   street,    from to ,    by     ( here    insert 

character   of   improvement),    on  the  lots   and   lands  benefited    and   to  be 

charged  therewith  as  set  forth  in  a  resolution  No ,  to  improve 

said  street,  passed ,  19 .... ,  has  been  made  and 

reported  to  council  and  said  estimated  assessment   is  now  on  file  in  the 

office  of  the  clerk  of  the  city  [or  village]  of ,  for 

the  inspection  and  examination  of  all  persons  interested  therein. 

By  order  of  the  Council  of  the  City  for  Village]  of 


,    19...  Clerk. 


Sec.  2279  R.  S.     [Objections  to  assessments  to  be  filed.]     If 

any  person  objects  to  the  assessment,  he  shall  file  his  objections, 
in  writing,  with  the  clerk,  within  two  weeks  after  the  expiration 
of  the  notice ;  and  thereupon  the  council  shall  appoint  three  dis- 
interested freeholders  of  the  corporation  to  act  as  an  equalizing 
board.      [66  v.  249,  §  586;  (S.  &  S.  833).] 

FORM   OF  RESOLUTION   APPOINTING   EQUALIZING   BOARD. 

Be   it    resolved  by  the   council    of  the   city    for  village]    of , 

State  of  Ohio,  two-thirds  of  the  members  of  council  concurring, 

That ,  and ,  three  disinterested  free- 
holders of  said  city  [or  village]  be,  and  they  are  hereby  appointed  to  act 
as  an  equalizing  board  to  hear  all  objections  to  the  estimated  assessment 
heretofore  reported  to  council  by  the  estimating  board  appointed  under  a 

resolution   passed    on    the day   of ,    19...,    of   the   cost   of 

improving street,     from to and    to    equalize 

the  same  as  to  them  seems  proper,  in  accordance  with  law. 

Said  board  shall  meet  for  the  above  purpose  at (insert  place) 


THE    OHIO    MUNICIPAL    CODE.  [Code    §     94 

on  the day  of ,   19.  .  .,  at.  .  .  .M.,  and  upon  the  completion 

of  such  equalization  shall  report  such  equalized  assessment  to  eounc*1 

Passed ,  19 ... . 

Attest : 


Clerk.  President  of  Coun^1- 

Sec.  2282  R.  S.  [Concurrence  of  two-thirds  requisite  to  ap- 
point board.]  A  concurrence  of  two-thirds  of  the  members  of 
the  council  shall  be  necessary  in  appointing  the  equalizing 
board,  and  in  confirming  its  assessment.      [66  v.  249,  §  589.] 

Sec.  2284  R.  S.  [Cost  of  any  improvement  shall  include  what.] 
The  cost  of  any  improvement  contemplated  in  this  chapter  shall 
include  the  purchase  money  of  real  estate,  or  any  interest  there- 
in, when  the  same  has  been  acquired  by  purchase,  or  the  value 
thereof  as  found  by  the  jury,  where  the  same  has  been  appro- 
priated, the  costs  and  expenses  of  the  proceeding,  the  damages 
assessed  in  favor  of  any  owner  of  adjoining  lands  and  interest 
thereon,1  the  costs  and  expenses  of  the  assessment,  the  expense 
of  the  preliminary  and  other  surveys,  and  of  printing,  publish- 
ing the  notices  and  ordinances  required,  including  notice  of  as- 
sessment, and  serving  notices  on  property  owners,  the  cost  of 
construction,  interest  on  bonds,  where  bonds  have  been  issued  in 
anticipation  of  the  collection  of  assessments,  and  any  other  nec- 
essary expenditure,2  [1886,  May  15;  83  v.  171,  172;  Kev. 
Stat.  1880;  66  v.  241,  §  544.] 

(1)   Costs  of  appropriation. —  eluded  in  the  assessment.    McGlynn 

The  cost  of  land  appropriated  for  v.  Toledo,  22  0.  C.  34  (affirmed,  47 

an  improvement  and  the  costs  and  B.  712)  ;  Freeman  v.  Hunter,  7  C.  C. 

expenses  of  the  appropriation  pro-  117;   Fridman  v.  Norwood,  1  C.  C. 

ceedings  cannot  now  be  assessed  on  (N.  S.)    97;  25  C.  C.  258;  Bartley 

abutting  property.     See   Dayton  v.  v.   Cincinnati,   8   C.   C.   226.     Cases 

Bauman,  66  O.  S.  379;  C.  L.  &  N.  contra,    McMakin    v.    Cincinnati,    7 

Ry.    v.    Cincinnati,    62    O.    S.    465;  N.  P.  203;   Corry  v.  Cincinnati,  22 

Youngstown    v.    Bonnell,    65    O.    S.  B.  194. 

575;    Dodsworth    v.    Cincinnati,    18  Or  the  cost  of  grading  or  lower- 

C.  C.  288;  Rhoades  v.  Toledo,  6  C.  ing   the    street    to    the    new    grade. 

C.  9;  Carlisle  v.  Cincinnati,  8  C.  C.  Carlisle  v.  Cincinnati,  8  C.  C.    (N. 

(N.  S.)   46.  S.)  46;  Thale  v.  Cincinnati,  10  Cin. 

For  former  cases  contra,  see  Cleve-  Court  Index.  No.  103. 
land  v.  Wick,  18  O.  S.  303;  West-  (2)   What  costs  and  expenses 

wood  v.  Dater,  23  B.  291;  Straus  v.  included. — Expense  of  a   retaining 

Cincinnati,  24  B.  422*;   Norwood  v.  wall  along  street,  Longworth  v.  Cin- 

Ogden,  18  C.  C.  869;   Krumberg  v.  cinnati,    34     O.     S.     101;     cost    of 

Cincinnati,   29    O.    S.    69;    Meissner  lateral   and   cross  drain  pipes,  lb.; 

v.    Toledo,    31    O.    S.    387;    Otis    v.  compensation    of    superintendent   of 

Cleveland,  1  Clev.  91.  work,     but    not     compensation    for 

Damages  to  abutting  property  services  of  salaried  officers,  It.; 
^r   change  of  grade  cannot   be   in- 


Code  §  94]     assessm'ts.     miscellaneous  provisions.       263 


small  additional  expense  necessary 
to  make  the  improvement  a  good  job, 
as  placing  a  French  drain  in  street, 
or  increasing  width  of  improvement, 
though  not  provided  for  in  the  ordi- 
nance to  improve,  etc.,  Hastings  v. 
Columbus,  42  O.  S.  585;  Taylor  v. 
Wapakoneta,  26  C.  C.  285;  amount 
retained  as  guaranty  of  good  work, 
but  not  if  retained  for  repairs,  Frid- 
man  v.  Norwood,  1  C.  C.  (N.  S.) 
97;  25  C.  C.  258,  (aff'd,  49  B.  99)  ; 
necessary  sheeting  in  a  trench,  not 
before  provided  for,  Cincinnati  v. 
Anchor  White  Lead  Co.,  44  O.  S. 
243;  cost  of  broken  stone  beyond 
that  called  for  in  contract,  Cincin- 
nati v.  Goodman,  5  Rec.  153;  ex- 
pense of  curbing,  included  in  street 
assessment,  Ehni  v.  Columbus,  3  C. 
C.  494;  fees  of  equalizing  board, 
Chamberlain  v.  Cleveland,  34  0.  S. 
551,  569;  expense  of  grading  ap- 
proaches on  intersecting  streets,  But- 
ler v.  Toledo,  5  0.  S.  225 ;  Creighton 
v.  Scott,  14  0.  S.  438;  expense  of 
advertisement  in  more  than  one 
newspaper,  although  statute  pro- 
vides for  "  advertisement  in  some 
newspaper,"  Cincinnati  v.  Davis,  58 
O.  S.  225,  237;  Fridman  v.  Nor- 
wood, 1  C.  C.  (N.  S.)  97;  25  C.  C. 
258  (aff'd,  49  B.  99);  additional 
cost  of  retaining  wall,  McMakin  v. 
Cincinnati,  7  N.  P.  203 ;  interest  on 
installments,  Steese  v.  Oviatt,  24 
O.  S.  248;  interest  from  time  fixed 
for  payment,  when  assessment  de- 
fective, but  amount  properly  charge- 
able equals  assessment,  Gest  v.  Cin- 
cinnati, 26  0.  S.  275;  interest  on 
amount  justly  due  from  the  time  the 
court  found  it,  but  not  earlier,  in 
the  ordinary  case,  Burkhardt  v.  Cin- 
cinnati, 7  C.  C.  260;  Fricke  v.  Cin- 
cinnati, 1  N.  P.  98. 

The  fact  that  preliminary  ex- 
penses, such  as  cost  of  advertising, 
serving  notices,  etc.,  have  been  paid 
out  of  the  general  funds  of  the  mu- 


nicipality, does  not  prevent  such  ex- 
penses from  being  lawfully  included 
in  the  assessment,  to  reimburse  tke 
general  fund.  Adkins  v.  Toledo,  27 
C.  C.  417;   6  C.  C.    (N.  S.)   433. 

Municipality  does  not  have  to  de- 
duct from  assessment  the  difference 
between  interest  which  it  has  to  pay 
on  its  bonds  and  interest  which 
property  owner  pays  the  city. 
Borger  v.  Columbus,  3  N.  P.  (N.  S.) 
#261;  15  Dec.  476;  27  C.  C.  812; 
C  C.  C.  (N.  S.)  401.  See  Code,  § 
100,  as  to  deduction  under  former 
statutes;  see  Fridman  v.  Norwood, 
25  C.  C.  258;  1  C.  C.  (N.  S.)  97; 
Mudge  v.  Evanston,  7  C.  C.  (N.  S.) 
197. 

Items  which  cannot  be  in- 
cluded.— Compensation  for  services 
of  salaried  officers,  Cincinnati  v. 
Longworth,  34  O.  S.  101;  cost  of 
repair  of  bad  work,  Spangler  v. 
Cleveland,  35  O.  S.  469;  Watterson 
v.  Bradley,  43  O.  S.  456 ;  percentage 
to  pay  collector's  fees,  Jonas  v.  Cin- 
cinnati, 18  O.  318;  Spangler  v. 
Cleveland,  35  O.  S.  469;  expenses 
for  advertising,  etc.,  where  void  as- 
sessment is  enforced  on  ground  of  es- 
toppel, Corry  v.  Gaynor,  22  O.  IS. 
584,  597;  interest  on  bonds  which 
make  the  assessment  exceed  the  per- 
centage of  value  of  property  allowed 
by  law,  Salem,  v.  Mulford,  22  C.  C. 
397  (affirmed,  62  O.  S.  632);  fees 
for  service  of  notice  in  excess  of 
lawful  amount,  McGlynn  v.  Toledo, 
22  C.  C.  34  (affirmed,  47  B.  712)  ; 
item  of  expense  not  in  estimate, 
whether  to  be  included,  see  Knorr 
v.  Cincinnati,  21  B.  297  (affirmed 
without  report,  24  B.  371). 

Determination  of  council  that 
an  item  of  expense  is  properly  to  be 
included  is  not  conclusive.  Reynolds 
v.  Clearwater,  4  Gaz.  129. 

Additional  advertising,  etc.,  is 
not  necessary  to  allow  items  prop- 
erly included  in  necessary  expendi- 
tures to  be  included  in  assessment. 
Hastings  v.  Columbus,  42  O.  S.  585. 


Sec.  2285  R.  S.     [When  payable;  lien  of;  release  of  such  lien.]1 

Special  assessments  shall  be  payable  by  the  owners  2  of  the  prop- 
erty assessed  personally,  by  the  time  stipulated  in  the  ordinance 
providing  for  the  same,  and  shall  be  a  lien  from  the  date  of  the 
assessment  upon  the  respective  lots  or  parcels  of  land  assessed,3 


264 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    94 


and  it  shall  be  the  duty  of  the  city  clerk,  whenever  presented 
with  a  receipt  from  the  contractor  4  in  whose  favor  an  assess- 
ment is  confirmed,  or  his  assigns  showing  said  assessment  on 
any  property  for  any  improvement  to  have  been  paid,  to  at  one© 
record  said  fact  upon  the  margin  of  the  record  of  said  assessr 
ment,  together  with  the  date  of  such  presentation,  from  which 
time  said  property  shall  be  released  from  the  lien  aforesaid. 
[90  v.  50;  66  v.  242,  §  545.] 


(1)  Object  of  section  is  not  to 

define  property  liable  to  assessment, 
but  to  prescribe  the  time  when  the 
assessment  becomes  a  lien  on  the; 
property  and  charge  against  the 
owner.  Douglass  v.  Cincinnati,  29 
O.  S.  165;  Cincinnati  v.  Oliver,  31 
O.  S.   371. 

Validity  of  statutes  creating  per- 
sonal liability  for  assessments  sus- 
tained. Hill  v.  Higdon,  5  O.  S. 
243;  Gest  v.  Cincinnati,  26  O.  S. 
275. 

( 2 )  Owners. —  Lessee  for  ten 
years  is  not  an  owner  within  mean- 
ing of  this  section.  Davis  v.  Cincin- 
nati, 36  O.  S.  24. 

Those  who  were  owners  at  the 
time  of  the  assessment  are  liable 
to  personal  judgment.  Toledo  v. 
Barnes,  8  C.  C.  684,  687. 

Holder  of  perpetual  lease  with 
privilege  of  purchase  is  an  "  owner." 
Clements  v.  Norwood,  32  B.  201. 

(3)  Lien. —  The  assessment  on 
property  is  a  lien  prior  to  a  mort- 
gage or  judgment.  Moerlein  Brew. 
Co.  v.  Westmeier,  4  C.  C.  296.  But 
see  Donohue  v.  Brotherton,  7  N.  P. 
367. 

It  is  superior  to  a  purchase  money 
mortgage.  Clifton  v.  Cincinnati,  3 
B.  272. 

Lien  is  for  the  present  value  of- 
whole  amount,  although  the  assess- 


ment is  payable  in  installments. 
Moerlein  Brew.  Co.  v.  Westmeier,  4 
C.  C.  296. 

A  covenant  against  all  claims 
whatsoever,  would  include  a  lien  for 
assessments.  Craig  v.  Heis,  30  0.  S. 
550. 

Assessment  becomes  a  lien  from 
the  date  of  the  passage  of  the  as- 
sessing ordinance.  Whipple  v.  To- 
ledo, 7  C.  C.  (N.  S.)  520. 

The  lien  of  municipality  on  real 
estate  for  assessments  remains  on 
such  real  estate  unaffected  by  sales 
and  transfers  and  can  be  collected 
as  other  taxes.  Where  the  property 
is  sold  under  judicial  process,  the 
city  need  not  and  should  not  be  made 
a  party.  Installments  payable  at 
the  time  and  upon  the  annual  dupli- 
cate, must  be  paid  out  of  the  pro- 
ceeds of  the  sale,  and  other  install- 
ments will  continue  a  lien  to  be  paid 
by  the  purchaser.  Makley  v.  Whit- 
more,  61  O.  S.  587,  595;  Hagerty  v. 
Columbus,  14  Dec.  1. 

Property  owners,  whose  property 
has  been  appropriated  by  the  mu- 
nicipality, are  liable  for  remaining 
installments  of  street  assessment 
levied  on  the  property.  Cincinnati 
v.  Burnet,  3  O.  L.  K.  572. 

Where  land  on  which  there  is  an 
assessment  lien  is  divided  into  par- 
cels and  sold,  the  separate  parcels 
are  liable  for  the  liens  in  the  in- 
verse order  of  sale.  Cincinnati  v. 
Wynne,  19  C.  C.  747  (aff'd,  65  O.  S. 
611). 

(4)  Payment  to  contractor. — 
See  §  94  of  the  Code  and  note  (4) 
thereunder,  p.  259. 


Sec.  2286  R.  S.     [Assessment  and  penalty  recovered  by  suit.] 

If  payment  is  not  made  by  the  time  stipulated,  the  amount  as- 
sessed, together  with  interest,  and  a  penalty  of  five  per  cent. 
thereon,1  may  he  recovered  by  suit 2  before  a  justice  of  the 
peace,  or  other  court  of  competent  jurisdiction,  in  the  name  of 


Code  §  94]      assessm'ts.    miscellaneous  pkovisions. 


265 


the  corporation,  against  the  owner  or  owners,3  but  the  owner 
shall  not  be  liable,  under  any  circumstances,  beyond  his  inter- 
est in  the  property  assessed,  at  the  time  of  the  passage  of  the 
ordinance  or  resolution  to  improve.4      [66  v.  242,  §  546.] 


(1)  Interest.— See  note  (2)  to 
§  2284  R.  S.,  supra,  p.  263. 

Penalty. —  No  penalty  can  be  col- 
lected where  the  assessment  is  not 
conclusive,  because  of  irregularities. 
Upingcon  v.  Oviatt,  24  O.  S.  232. 
See  also  Pike  v.  Cummings,  36  O. 
S.  213. 

If  judgment  was  entered  without 
including  penalty,  and  without  ob- 
jection, no  penalty  will  afterwards 
be  awarded.  Evans  v.  Cincinnati, 
3  B.  856. 

Where  judgment  is  reversed  and 
larger  amount  assessed,  court  can- 
not remit  penalty.  Finnell  v.  How- 
ell, 2  C.  S.  C.  R.  150,  155. 

Where  court  reduces  assessment 
because  beyond  statutory  limit,  no 
penalty  can  be  recovered.  Cincin- 
nati v.  Fugman,  5  N.  P.  14. 

Penalty  is  due  and  payable  al- 
though no  suit  is  brought.  Toledo 
v.  Piatt,  2  N.  P.  304;  and  a  tender 
must  include  interest  and  penalty. 
lb 

(2)  Action  to  collect.—  When 
assessment  certified  to  auditor  and 
put  on  the  tax  duplicate  the  action 
to  collect  by  city  does  not  lie.  Fre- 
mont v.  Hayes,  4  IT.  P.  379.  Such 
action  can  be  brought  only  by  the 
County  Treasurer.  Ry.  Co.  v.  Bel- 
laire,  47  B.,  865. 

Personal  judgment.  —  Statute 
making  lot  owners  personally  liable 
is  constitutional.  Gest  v.  Cincin- 
nati, 26  O.  S.  275.  But  no  personal 
liability  exists  unless  the  statute 
expressly  imposes  it.  Dreake  v. 
Beasley,  26  O.  S.  315. 

Personal  liability  exists  only  in 
case  of  one  owning  the  lot  at  the 
date  of  the  assessment  and  petition 


must  aver  ownership  at  that  time. 
Corry  v.  Gay  nor,  21  O.  S.  277. 

Personal  judgment  cannot  be  iiad 
against  one  in  possession  who  is  not 
an  owner.  Davis  v.  Cincinnati,  36 
O.  S.  24. 

See  further  Lowden  v.  Cincinnati, 
2  Disney,   203. 

Limitation  on  suit. —  Statute  of 
limitations  runs  not  from  date  of 
assessing  ordinance  but  from  time 
fixed  for  payment.  Reynolds  v. 
Green,  27  O.  S.  416;  the  limitation 
is  six  years.  lb.  As  to  whether 
statute  of  limitations  applies  to 
right  to  collect  assessment,  see 
Brenchweh  v.  Drake,  31  0.  S.  652; 
Hartman  v.  Hunter,  56  O.  S.  175; 
Linn  St.  Bldg.  Ass'n  v.  Morgan,  47 
B.  889 ;  Wasteney  v.  Schott,  58  O.  S. 
410. 

Defenses. —  No  defense  to  suit  to 
collect  assessment,  that  city  has  not 
yet  paid  the  money.  Bliss  v. 
Kraus,  16  O.  S.  54;  nor  that  proper 
plan  for  improvement  was  not 
adopted.  Toledo  v.  Grasser,  7  N. 
P.  396. 

No  set=off  to  the  assessment  can 
be  allowed  because  of  damages  to 
property  claimed  by  defendant,  Ulm 
v.  Cincinnati,  7  N.  P.  278;  nor  be- 
cause of  injury  to  defendant  by  slip- 
ping on  improperly  made  street. 
Shroder  v.  Overmann,  5  N.  P.  392; 
ana  see  Straus  v.  Cincinnati,  23  B. 
359;  nor  for  claim  for  materials 
furnished  to  contractor,  Wilson  v. 
Cincinnati,  5  N.  P.  68;  nor  for 
claim  against  contractor  for  digging 
more  material  from  lot  owner's 
property  than  licensed  to  take,  Hast- 
ings v.  Columbus,  42  O.  S.  585. 

Reduction  for  repairs  made  nec- 
essary by  bad  work  should  be  made 


266 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    94 


from  the  assessment.  Hastings  v. 
Columbus,  42  O.  S.  585. 

Money  received  by  municipality 
for  rent  of  tools  need  not  be  de- 
ducted from  assessment.  McGlynn 
v.  Toledo,  22  C.  C.  34  (affirmed,  47 
B.  712.) 

Pleading,  practice  and  evidence. 
—  Averment  of  "  due  passage  "  of 
resolution  is  sufficient  on  demurrer, 
though  two-thirds  vote  for  passage 
be  required.  Jessing  v.  Columbus, 
1  C.  C.  90.  See  also  Burns  v.  Pat- 
terson, 2  H.  270. 

Answer  denying  that  requisite 
number  petitioned  for  improvements 
needs  no  reply.  Corry  v.  Campbell, 
25  O.  S.  134,  140. 

Where  claim  has  already  been  ad- 
judged a  lien  on  the  property,  no 
question  on  demurrer  can  arise  as  to 
validity  of  improvement  or  statute 
of  limitations.  Columbus  v. 
Schneider,  12  C.  D.  781. 

Jury  trial,  whether  necessary. 
Norris  v.  Casper,  8  N.  P.,  475,  476. 

Where  assessments  have  exceeded 
benefits  the  trial  court,  in  action  to 


collect,  may,  upon  proper  pleadings 
determine  what  amount  should  be 
assessed;  and  court  may  also  set* 
aside  the  assessment  and  remit  the 
question  of  amount  to  city  authori- 
ties.    Walsh  v.  Sims,  65  O.  S.  211. 

Burden  of  proof  is  on  plaintiff  to 
show  assessment  exceeded  benefits, 
when  this  is  the  defense.  Yost  v. 
Railway  Co.,  24  C.  C.  169;  2  C.  C. 
(N.  S.)   519.     As  to  costs,  see  lb. 

Recovery  back. — Voluntary  pay- 
ment, what  is,  see  Marietta  v.  Slo- 
comb,  6  0.  S.  471;  Whitbeck  v. 
Minch,  48  O.  S.  210;  Stephan  v. 
Daniels,  27  O.  S.  527;  Groesbeck  v. 
Cincinnati,  51  O.  S.  365;  Cincin- 
nati v.  James,  55  O.  S.  180. 

Limit  of  time  for  recovery  back, 
is  one  year,  by  §  5848  R.  S.  See 
Groesbeck  v.  Cincinnati,  51  O.  S. 
365. 

Injunction  against  assessments. 
—  See  notes  to  §  50  of  the  Code. 

(3)  See  note  to  §  2285  R.  S., 
supra. 

(4)  Limit  of  liability  applies 
even  where  owner  is  one  of  three- 
fourths  of  property  owners  who  pe- 
titioned for  improvement  and  asked 
all  costs  to  be  placed  on  them.  Per- 
sonal judgment  cannot  exceed  the 
value  of  the  property.   Laird  v.  Cin- 


cinnati, 5  B.  903;  9  Rec.  479. 

Sec.  2287  R.  S.  [Lien  may  be  enforced  against  all  owners,  or 
a  part,  etc.]  Proceedings  for  the  recovery  of  the  assessment 
may  be  instituted  by  the  corporation  against  all  the  owners,  or 
each  or  any  number  of  them ;  or  to  enforce  the  lien,  against  all 
the  lots  or  lands>  or  each  lot  or  parcel,  or  any  number  of  them 
embraced  in  any  one  assessment;  but  the  judgment  or  decree 
shall  be  rendered  severally  or  separately  for  the  amount  as- 
sessed ;  and  any  proceeding  may  be  severed,  in  the  discretion  of 
the  court,  for  the  purpose  of  trial,  review,  or  appeal  where  an 
appeal  is  allowed.1      [66  v.  242,  §§  547,  549.] 

(1)  Enforcement      of      lien 


Lands  of  cemetery  association  ex- 
empt from  taxation  cannot  be  sold 
to  pay  assessment,  but  assessment 
may  be  enforced  by  such  remedy  as 
courts  of  equity  afford.  Lima'  v. 
Cemetery  Ass'n,  42  O.  S.   128. 


Municipality  cannot  enforce  lien 
after  assessment  has  been  certified 
to  county  auditor.  Fremont  v. 
Hayes,  4  N.  P.  379. 

Municipality  may  buy  in  prop- 
erty on  which  it  has  a  Hen.  City 
v.  Schneider,  7  N.  P.  619. 


Code  §  94]      assessm'ts.    miscellaneous. provisions.        267 

Sec.  2288  R.  S.  [Lien  as  to  non-resident  owner.]  In  proceed- 
ings to  enforce  the  lien,  when  the  owner  of  any  lot  or  land  as- 
sessed is  a  non-resident  of  the  state,  or  is  unknown,  notice 
shall  be  given  by  publication  in  the  manner  prescribed  by  law 
in  similar  cases.1      [66  v.  242,  §  548.] 

(1)   Manner    of    Publication. — 

See   §§    5046,    5047,   5048   and   5049 
R.  S. 

Sec.  2289  R.  S.  [Costs,  in  case  of  error  or  defect  in  proceed- 
ings.]1 If  in  any  such  action  it  shall  appear  that  by  reason  of 
any  technical  irregularity  or  defect — whether  in  the  proceed- 
ings of  the  board  of  improvements,  or  of  the  council,  or  of  any 
other  officer  of  the  corporation,  or  in  the  plans  or  estimates  — ■ 
the  assessment  has  not  been  properly  made  against  any  defend- 
ant or  upon  any  lot  or  parcel  of  land  sought  to  be  charged,2  the 
court  may  nevertheless  on  satisfactory  proof  that  expense  has 
been  incurred  which  is  a  proper  charge  against  such  defendant, 
or  lot  or  parcel  of  land  in  question,  render  judgment  for  the 
amount  properly  chargeable  against  such  defendant  or  on  such 
lot  or  land,3  but  in  such  cases  the  court  shall  make  such  order 
for  the  payment  of  the  costs  as  may  be  deemed  equitable  and 
proper.4  [1883,  March  9:  80  v.  52;  Kev.  Stat.  1880;  66  v. 
242,  §  550.] 

( 1 )  Validity  . —  §  2289  R.  S.  pro-  improve  passed  before  time  has  ex- 
viding  for  judgment  where  assess-  pired  for  filing  claim,  Toledo  v. 
ment  is  invalid  because  of  irregu-  Railway,  4  C.  C.  113;  failure  to  ad- 
larities  was  held  not  a  violation  vertise  for  bids  for  full  time  re- 
of  the  United  States  Constitution.  quired,  Upington  v.  Oviatt,  24  O. 
Railway  v.  Columbus,  23  B.  3.  S.   232;    see  also  where  rate  of  as- 

(2)  What  irregularities  cured.  sessment  not  uniform  on  all  proper- 
—  Irregularity  in  notice  of  resolu-  ty  assessed,  Jaeger  v.  Burr,  36  O. 
tion  and  ordinance  to  improve,  S.  164;  part  of  street  where  side- 
Green  v.  Cincinnati,  7  C.  C.  233;  ir-  walks  laid  not  being  brought  up  to 
regularity  in  estimate  of  cost  of  grade,  McGlynn  v.  Toledo,  22  C.  C. 
improvement,  Wewell  v.  Cincin-  34,  aff'd  47  B.,  712;  unlawful  com- 
nati,  45  O.  S.  407;  as  to  what  de-  bination  among  bidders  (in  such 
fects  in  advertisement  are  cured,  case  property  owners  may  obtain 
see  Wilder  v.  Cincinnati,  26  O.  S.  a  redaction  to  the  extent  of  actual 
284,  285,  Cincinnati  v.  Goodman,  injury),  Hubbard  v.  Norton,  28  O. 
5  Rec.  153;  publication  of  notice  S.  116;  lowest  bidder  released  at 
on  Sunday,  Hastings  v.  Columbus,  his  own  request,  Cincinnati  v.  Good- 
42   O.    S.    585;    defective    advertise-  man,  5  Rec.  153. 

ment    for    bids,    see    Cincinnati    v.  Lowest     bid     not     taken      from 

Bickett,   26  O.   S.  49;   ordinance  to      mistake    in    judgment,     assessment 


MS 


THE    OHIO    MUNICIFAL    CODE. 


[Code  §  94 


collectible  up  to  fair  value  of  work, 
Cincinnati  v.  Hopple,  1  B.  104;  no 
plans  and  specifications  on  file  when 
contract  made,  Becher  v.  McCloud, 
4  C.  C.  305;  advertisement  for  bid 
not  as  required,  lb.;  in  such  case 
the  reasonable  cost  is  recoverable, 
lb. 

Assessment  ordinance  requiring 
payment  at  date  earlier  than  its  pas- 
sage is  an  error  that  can  be  cured. 
Bolton  v.  Cleveland,  35  O.  a  319. 

Defects  not  cured.— Failure  to 
pass  improvement  ordinance  as  re- 
quired by  law,  Sullivan  v.  Pausch,  5 
C.  C.  196;  omission  to  publish  pre- 
liminary resolution,  Welker  v.  Pot- 
ter, 18.0.  S.  85;  but  see  Upington 
v.  Oviatt,  24  O.  S.  232;  failure  to 
pass  assessment  ordinance,  Brewer 
v.  Bowling  Green,  7  C.  C.  489 ;  fail- 
ure to  serve  land  owners  with  notice 
of  ordinance  to  improve,  Joyce  v. 
Barron,  67  O.  S.  264,  268;  but  see 
Toledo  v.  McMahon,  9  C.  C.  194; 
Kirby  v.  Winton  Place,  7  N.  P. 
169;  omission  of  notice  of  resolu- 
tion declaring  necessity  to  improve, 
Schmidt  v.  Elmwood  Place,  15  C.  C. 
351;  Welker  v.  Potter,  18  O.  S.  85; 
Stephan  v.  Daniels,  27  O.  S.  527; 
Knecht  v.  Cincinnati,  18  C.  C.  875; 
see  also  Kelly  v.  Cleveland,  34  0.  S. 
468.  (Property  assessed  which  was 
not  included  in  ordinance)  ;  collu- 
sion between  city  officers  and  con- 
tractor, Cincinnati  v.  Kemper,  17  B. 
116;  work  done  before  any  deter- 
mination to  assess,  Folz  v.  Cincin- 
nati, 2  H.  261. 

(3)   Amount  properly  chargea= 

ble. —  As  to  ascertainment  of  such 
amount,  see  Wilder  v.  Cincinnati,  26 
O.  S.  284;  Cincinnati  v.  Bicket,  26 
O.  S.  49;  Central  O.  R.  R.  Co.  v. 
Columbus,  23  B.  3. 

Court  may  allow  interest  from 
time  assessment  due  on  amount  prop- 
erly chargeable.  Gest  v.  Cincinnati, 
26  O.  S.  275.  See  further  Mc- 
Cloud v.  Columbus,  54  O.  S.  439, 
where  this  section  was  applied. 


Where  assessment  covers"  more  feet 
than  defendant  owns,  court  may  re- 
duce amount  proportionately.  Ride- 
nour  v.  Saffin,  1  H.-  464,  478. 

When  illegal  items  are  included  in 
the  assessment,  city  need  not  re-as- 
sess, but  court  may  correct  assess- 
ment. Dodson  v.  Cincinnati,  4  Rec. 
312. 

Amount  chargeable  is  not  amount 
of  benefits  but  that  part  of  the  as- 
sessment that  should  have  been 
charged,  if  assessment  had  been  le- 
gally made.  Cincinnati  v.  Bickett, 
26  O.  S.  49.  It  is  based  on  the  fair 
average  cost  and  not  the  cost  in 
front  of  each  lot.  Wilder  v.  Cincin- 
nati, 26  0.  S.  284. 

But,  though  court  can  correct  as- 
sessment, it  cannot  make  an  entire- 
ly new  assessment,  as  council  is  au- 
thorized to  do  by  §  2290  R.  S.  Mock- 
er v.  Cincinnati,  7  N.  P.  279. 

As  to  right  of  court  to  fix  amount 
properly  chargeable,  where  assess- 
ment improperly  made,  not  because 
of  technical  error,  but  because  in 
excess  of  benefits,  etc.,  see  note  2 
under  §  53  of  the  Code,  p.  202. 

Jury  trial.—  Under  §  2289  giving 
the  court  power  to  determine  the 
amount  properly  chargeable  and 
award  judgment  therefor,  the  issue 
i3  not  one  triable  by  a  jury  but  by 
the  court.  R.  R.  Co.  v.  Bellaire,  60 
O.  S.  301. 

Applies  to  injunctions. —  Where 
property  owner  sues  to  enjoin  collec- 
tion of  assessment,  §  2289  R.  S.  ap- 
plies and  court  may  fix  amount 
properly  chargeable. 

Where  plaintiff  in  such  case  ad- 
mits that  part  is  due  he  must  ten- 
der such  part  before  he  can  have  in- 
junction. Griswold  v.  Pelton,  34  O. 
S.  482. 

(4)  Costs  of  a  suit  to  reduce 
assessment  should  fall  on  municipal- 
ity. Burkhardt  v.  Cincinnati,  7  C, 
C.  260,  262. 


Code  §  94]       assessm'ts.    miscellaneous  provisions. 


Sec.  2290  R.  S.  [When  re-assessment  may  be  ordered.  ]  When 
it  appears  to  the  council  that  a  special  assessment  is  invalid,  by 
reason  of  informality  or  irregularity  in  the  proceedings,  or 
when  an  assessment  is  adjudged  to  be  illegal,  by  a  court  of  com- 
petent jurisdiction,  the  council  may  order  a  re-assessment, 
whether  the  improvement  has  been  made  or  not1  [66  v.  242, 
§  551.] 


(1)  Right  to  re=assess. —  If 
property  which  ought  to  have  been 
assessed  is  omitted,  the  assessment 
will  be  enjoined,  but  the  right  to 
make  re-assessment  will  not  be  prej- 
udiced. Upington  v.  Oviatt,  24  O. 
S.  232. 

A  re-assessment  may  also  be  made 
where  the  action  of  the  equalization 
board  is  unauthorized.  Chamber- 
lain v.  Cleveland,  34  O.  S.  551. 

Where  an  assessment  was  held 
void  because  the  city  put  an  assess- 
ment at  one  rate  on  abutting  prop- 
erty and  another  assessment  at  a 
different  rate  upon  lots  declared  to 
be  specially  benefited,  the  right  to 
re-assess  was  held  not  to  be  preju- 
diced.    Akron  v.  Allen.  22   B.  260. 

Where  a  contractor  was  unable 
to  recover  an  assessment  because 
part  of  the  work  was  enjoined,  but 
recovered  the  amount  from  the  city, 
the  city  could,  on  the  removal  of 
the  injunction  and  completion  of 
the  work,  reimburse  itself  by  a  re- 
assessment. Cincinnati  v.  Wilder, 
9  Rec.  727. 

The  right  to  make  a  proper  re- 
assessment is  not  prejudiced  where 
an  assessment  is  held  illegal  be- 
cause the  ordinance  to  improve  a 
street  provides  for  assessment  by 
the  front  foot,  while  the  assessment 


of  damages  to  the  abutters  was  by 
benefits.  Dick  v.  Toledo,  5  C.  D. 
157;  11  C.  C.  349. 

The  curative  sections  apply  and 
a  re-assessment  may  be  had,  if  an 
assessment  is  void  because  made 
on  a  wrong  basis.  Frey  v.  Findlay, 
7  C.  C.  311,  327. 

A  re-assessment  is  valid,  even 
though  a  portion  of  the  money 
thereby  derived  is  used  for  the 
extension  of  the  improvement  be- 
yond the  limits  designated.  But- 
ler v.  Toledo,  5  O.  S.  225,  230. 

When  re-assessment  is  precluded: 
See  Kelly  v.  Cleveland,  34  O.  S. 
468. 

Who  may  re=assess. —  The  right 
to  re-assess  lies  with  council,  and  a 
court  has  no  power  to  order  a  re- 
assessment. Mocker  et  al.  v.  Cin- 
cinnati, 4  Dec.  161;  5  N.  P.  242. 

It  is  not  error  for  the  court  to 
refuse  to  set  aside  an  assessment 
and  submit  the  question  to  the  city 
authorities  for  re-assessment,  where 
the  assessment  made  by  the  city  ex- 
ceeds in  a  substantial  amount  the 
special  benefits  conferred,  and  the 
trial  court  may,  upon  proper  plead- 
ings, determine  the  amount  to  be 
assessed.  Walsh  v.  Sims,  Treasurer, 
65  O.  S.  211. 


Sec.  2291  R.  S.  [Proceedings  upon  re-assessment.]  Proceed- 
ings upon  a  re-assessment,  and  for  the  collection  thereof,  shall 
be  conducted  in  the  same  manner  as  is  provided  for  the  original 
assessment.      [66  v.  242,  §  552.] 


270  the  ohio  municipal  code.  [Code  §  94 

Sec.  2294  R.  S.  [Special  duty  of  courts.]  The  court  of  com- 
mon pleas  and  superior  courts  shall  have  the  jurisdiction  au- 
thorized by  this  chapter  for  the  collection  of  any  charge  or  debt, 
or  the  enforcement  of  any  lien,  notwithstanding  the  amount 
involved  shall  be  less  than  that  to  which  the  jurisdiction  is  lim- 
ited in  other  cases;  and  those  courts  may  make  such  special 
rules  concerning  the  class  of  cases  authorized  to  be  brought  un- 
der this  chapter  as  will  tend  to  expedite  their  disposition,  and 
prevent  unnecessary  costs.      [66  v.  242,  §  553.] 

Sec.  2295  R.  S.  [Unpaid  assessments  to  be  certified  to  auditor.] 
The  council  may  order  the  clerk  or  other  proper  officer  of  the 
corporation  to  certify  any  unpaid  assessment  or  tax  to  the  au- 
ditor of  the  county  in  which  the  corporation  is  situated,  and  the 
amount  of  such  assessment  or  tax  so  certified,  shall  be  placed 
upon  the  tax-list  by  the  county  auditor,1  and  shall,  with  ten 
per  cent,  penalty  2  to  cover  interest  and  cost  of  collection,  be 
collected  with  and  in  the  same  manner  as  state  and  county 
taxes,  and  credited  to  the  corporation;  provided,  that  the  said 
ten  per  cent,  penalty  shall  in  no  case  be  added  unless  at  least 
thirty  days  shall  intervene  between  the  date  of  the  publication 
of  the  ordinance  making  the  levy  and  the  time  of  certifying  the 
same  to  the  county  auditor  for  collection.3  [1883,  March  7: 
80  v.  52;  Rev.  Stat.  1880;  66  v.  243,  §  554.] 

(1)  Section  construed. —  See  R.  if  assessment  not  paid  in  time  be- 
lt. Co.  v.  Sullivan,  32  O.  S.   152.  cause   defective.     Upington   v.   Ovi- 

Placing    on     duplicate.—  Where  att,  24  O.  S.  232. 

assessment    had    been    assigned    to  See  further,  Hartman  v.  Hunter, 

contractor    it    could    not   be    placed  8  C.  C.  623. 

on  tax  duplicate.  Horn  v.  Columbus,  (3)   New  provisions  of  code. — 

1    C.   C.    337.  See  §  94  of  the  Code,  which  provides 

Where   assessment   has   been    cer-  that  whenever  bonds   are  issued  in 

tified  to  auditor,  municipality  can-  anticipation    of    the     collection    of 

not  then  collect  by  suit.     Fremont  assessments,    all    such    assessments 

v.  Hayes,  4  N.  P.  379.  (except,    of    course,    those    paid    in 

Only    county    treasurer    can    sue.  cash)  shall  be  certified  to  the  coun- 

Ry.  Co.  v.  Bellaire,  67  O.  S.  297.  ty    auditor    and    collected    as   other 

County    auditor    not    entitled    to  taxes.      In    all    other    cases   assess- 

compensation  for  preparing  a  special  ments  are  collected  by  the  treasurer 

delinquent      assessment      duplicate.  of   the   municipality,   and   these,    if 

Marshall  v.   Wooster,   38   B.    170.  unpaid,  may  be  certified  as  provided 

(2)  Penalty  cannot  be  collected  in   §  2295  R.  S.,  above. 

Sec.  2297  R.  S.  [Duration  of  lien,  etc.]  The  lien  of  an  as- 
sessment *  shall  continue  two  years  from  the  time  the  same  is 
payable,  and  no  longer,2  unless  the  corporation  shall,  before  the 


Oode  §  94]      assessm'ts.    miscellaneous  provisions.        271 

expiration  of  the  time,  have  caused  the  same  to  be  certified  to 
the  auditor  of  the  proper  county,  for  entry  upon  the  tax-list,  for 
collection,3  or  shall  have  caused  the  proper  action  to  be  com- 
menced in  some  court  having  jurisdiction  thereof,  to  enforce 
such  lien  against  such  lots  or  lands,  in  which  case  the  lien 
shall  continue  in  force  so  long  as  such  assessment  remains  on 
the  tax-list  uncollected  or  so  long  as  such  action  is  pending, 
and  any  judgment  obtained,  under  and  by  virtue  thereof,  re- 
mains in  force  and  unsatisfied.  [66  v.  243,  §  556;  (S.  &  S. 
837).] 

( 1 )  Lien  distinguished  from  on  its  face  that  the  two  years  have 
that  given  by  §  1104  R.  S.  Hart-  elapsed  it  is  demurrable.  Bonte  v. 
man  v.  Hunter,  8  C.  C.  623.  Taylor,   24  O.   S.   628. 

(2)  Suit  by  municipality  to  col-  (3)    Limitation    of    actions    to 

lect    must    be    brought    within    the  collect    assessments.      See    no^e    to 

two  years  and  where  petition  shows  §  2286  R.  S.,  supra,  p.  265. 

Sec.  2298  It.  S.  [When  new  action  may  be  commenced.]  If  an 
action  is  commenced  within  due  time,  and  a  judgment  therein 
for  the  plaintiff  is  reversed,  or  if  the  plaintiff  fails  in  such 
action  otherwise  than  upon  the  merits,  and  the  time  limited  for 
the  same  has  expired,  [a  new  action  may  he  commenced  with-] 
in  one  year  after  such  reversal  or  failure.      [66  v.  243,  §  557.] 

Sec.  2299  It.  S.  [Collection  of  assessment  in  advance.]  The 
council  may,  if  it  deems  expedient,  cause  the  assessments  to 
be  collected  before  the  work  is  done  or  contracted  for.  [66  v. 
243,  §  558.] 

Sec.  2300  It.  S.  [Deficiency  or  excess  of  assessments.]  If  an 
assessment  proves  insufficient  to  pay  for  the  improvement  and 
expenses  incident  thereto,  the  council  may,  under  the  limita- 
tions prescribed  for  such  assessment,  make  an  additional  pro 
rata  assessment  to  supply  such  deficiency ;  and  in  case  a  larger 
amount  is  collected  than  is  necessary,  the  same  shall  be  returned 
to  the  persons  from  whom  it  was  collected,  in  proportion  to  the 
amounts  collected  from  such  persons  respectively;  but  this  sec- 
tion shall  be  subject  to  the  limitations  contained  in  other  sec- 
tions of  this  chapter.      [66  v.  243,  §   559.] 

Sec.  2302.  [Added  territory.]  The  provisions  of  this  chap- 
ter shall  embrace  territory  added  to  the  corporation  by  annex- 
ation or  otherwise.      [66  v.  244,  §  561.] 

Sec.  2318.  [Proceedings  of  jury.]  *  The  jury  shall  he  sworn 
to  inquire  into  and  assess  the  actual  damages  in  each  case  sep- 
arately, under  such  rules  and  instructions  as  shall  he  given  it 
by  the  court;  and  when  the  jury  cannot  agree,  it  may  be  dis- 


272  THE    OHIO    MUNICIPAL    CODE.  [Code    §    94 

charged;  but  the  court  may  receive  its  verdict  as  to  one  or 
more  of  the  claimants,  and  discharge  it  with  respect  to  parties 
concerning  whose  claims  it  cannot  agree;  and  in  case  of  the 
discharge  of  the  jury  because  of  disagreement  as  to  any  or  all 
of  the  claims,  a  new  jury  shall  be  summoned,  and  the  same 
proceedings  shall  be  had,  with  respect  to  the  claims  concern- 
ing which  there  was  no  verdict,  as  on  the  original  trial.  [66 
v.  246,  §  567;  (S.  &  C.  1545).] 

( 1 )   Application     of     section.—      ments,  and  should  follow  §  56  of  the 
This  section  refers  to  proceedings  to       Code,  supra. 
assess  damages  caused  by  improve- 

Sec.  2321  R.  S.   [Assessment  after  completion  of  improvement.]1 

In  all  cases  where  the  council  determines  to  assess  the  dam- 
ages after  the  completion  of  any  improvement  provided  for 
by  this  chapter,  for  which  a  claim  for  damages  has  been  filed 
as  hereinbefore  provided,  the  mayor  or  solicitor  shall,  within 
ten  days  after  the  completion  of  such  improvement,  make  writ- 
ten application  to  the  court  of  common  pleas,  or  a  judge  there- 
of in  vacation,  or^to  the  probate  court  of  the  county  in  which 
the  corporation,  or  the  larger  part  thereof,  is  situated,  to  sum- 
mon a  jury,  in  the  manner  pointed  out  in  chapter  three  of  this 
division,2  to  assess  the  amount  of  damage  in  each  particular 
case;  and  such  court  or  judge  shall  fix  the  time  and  place  of 
inquiry,  and  the  assessment  of  damages,  in  the  manner  herein- 
before provided.      [67  v.  82,  §  570.] 

(1)   Application    of    section. —  (2)   Sections  referred  to. —  This 

This  section  refers  to  the  assessment  refers  to  the  chapter  in  the  Revised 

of  damages  caused  by  improvements,  Statutes    on    the    appropriation    of 

when  such  damages  are  to  be  ascer-  property     by     municipalities,     now 

tained  after  improvements  are  made.  superseded  by  §§  10  to  22  inclusive 

If    placed    in    appropriate    order    it  of  the  Code,  supra. 
should    follow    §    58    of    the    Code, 
supra. 

Sec.  2326  R.  S.     [Time  allowed  before  suit  can  be  brought.] 

No  person  who  claims  damages,  arising  from  any  cause,  shall 
commence  a  suit  therefor  against  the  corporation  until  he  files 
a  claim  for  the  same  with  the  clerk  of  the  corporation,  and  sixty 
days  elapse  thereafter,  to  enable  the  corporation  to  take  such 
steps  as  it  may  deem  proper  to  settle  or  adjust  the  claim;  but 
this  provision  shall  not  apply  to  an  application  for  an  injunc- 
tion, or  other  proceeding  to  which  it  may  be  necessary  for  such 
applicant  to  resort  in  case  of  argent  necessity.1  [66  v.  247,  § 
575;  (S.  &  C.  1541).] 


Code  §  94]      assessm'ts.    miscellaneous  provisions.        273 

(1)   Damages   for  personal   in=  Where   no   notice   received,    of 

jury    are    not    included   within   the  resolution     to     improve,     property 

words  "  damages   arising  from   any  owner  is  not  barred  from  commenc- 

cause "    and    claims    for    such    dam-  ing  a  suit  for  damages.     Jacobs  v. 

ages    need    not    be    filed.      City    v.  Cincinnati,  2  N.  P.  283. 
Davis,  43  O.  S.  447. 

Sec.  2327  R.  S.     [Construction  of  provisions.]  Proceedings 

with  respect  to  improvements  shall  be  liberally  construed  by  the 
councils  and  courts,  to  secure  a  speedy  completion  of  the  work, 
at  reasonable  cost,  and  the  speedy  collection  of  the  assessment 
after  the  time  has  elapsed  for  its  payment,  and  merely  formal 
objections  shall  be  disregarded ;  but  the  proceedings  shall  be 
strictly  construed  in  favor  of  the  owner  of  the  property  as- 
sessed or  injured,  as  to  the  limitations  on  assessment  of  pri- 
vate property,  and  compensation  for  damages  sustained.1 

(1)  Applied. —  Cincinnati  v.  She-  Cincinnati,  11  C.  C.  336  (affirmed, 
rike,  47  O.  S.  217,  222;   Connor  v.       55   O.   S.   82). 

Sec.  2332  R.  S.  [Construction  of  sidewalks  on  one  side  only; 
upon  other  side.]  If  the  board  of  public  works,  board  of  admin- 
istration, board  of  city  affairs,  board  of  improvements,1  coun- 
cil or  trustees  of  any  municipal  corporation  deem  it  necessary 
to  construct  a  sidewalk  or  gutter  on  one  side  only  of  any  street, 
alley,  turnpike  or  plank  road  with  proper  crossings  from  one 
side  to  the  other,  it  shall  be  lawful  to  assess  and  collect  the 
charge  for  constructing  or  repairing  such  sidewalk,  gutter  and 
crossings  on  the  owners  of  the  lots  or  lands  abutting  on  both 
sides  of  such  street,  alley  or  road  in  like  manner  as  if  such  side- 
walk and  gutter  had  been  constructed  on  both  sides ;  but  when 
a  sidewalk  or  gutter  is  so  constructed,  if  it  is  deemed  necessary 
to  construct  a  sidewalk  or  gutter  on  the  other  or  corresponding 
side  of  such  street,  alley  or  road,  the  charge  therefor  shall  also 
be  assessed  on  the  owners  of  the  lots  and  lands  on  both  sides.2 
[90  v.  213;  89  v.  392;  66  v.  250,  §  594;  (S.  &  S.  838).] 

(1)  Interpretation. —  This  must  constructing  a  sidewalk  on  one  side 
be  taken  to  mean  such  board  only  only,  leaving  no  space  for  sidewalk 
as  is  given  authority  in  sidewalk  on  other  side  and  assessing  cost  on 
improvements  by   the  Code.  both  sides,  it  is  unreasonable.    Mills 

(2)  Ordinance  unreasonable.—  v.  Norwood,  26  B.  348,  6  C.  C.  305. 
Where    an    ordinance    provides    for 


274  the  ohio  municipal  code.         [Code  §  95 

Sixth.     Power  to  Borrow  Money.1 

(a)    General  Provisions. 

Sec.  95.  [Power  of  municipality  to  borrow  money  and  issue 
certificates  of  indebtedness  therefor,  in  anticipation  of  general 
revenue  fund;  limitation.]  2  All  municipal  corporations  shall 
have  power  to  borrow  money  3  and  issue  certificates  of  indebted- 
ness therefor,  signed  as  municipal  bonds  are  signed,  in  antici- 
pation of  the  general  revenue  fund  in  any  fiscal  year,  but  no 
loans  shall  be  made  exceeding  the  amount  of  taxes  and  reve- 
nues estimated  to  be  received  at  the  next  semi-annual  settlement 
of  tax  collections  for  said  fund,  after  deducting  all  advances. 
The  sums  so  anticipated  shall  be  deemed  as  appropriated  for 
the  payment  of  the  certificates  at  maturity.  Such  certificates 
of  indebtedness  shall  not  run  for  a  longer  period  than  six 
months,  nor  bear  a  greater  rate  of  interest  than  six  per  cent., 
nor  be  sold  for  less  than  par  with  accrued  interest. 

[Power  of  municipal  corporation  to  issue  bonds  in  anticipation 
of  special  assessments.]  Municipal  corporations  shall  likewise 
have  power  to  issue  bonds  in  anticipation  of  special  assess- 
ments,4 and  such  bonds  may  be  in  sufficient  amount  to  pay  the 
estimated  cost  and  expense  of  the  improvement  for  which  such 
special  assessments  are  levied,  and  in  the  issuance  and  sale  of 
such  bonds  the  municipality  shall  be  governed  by  all  the  re- 
strictions and  limitations  with  respect  to  the  issuance  and  sale 
of  other  bonds,  and  the  assessments  as  paid  shall  be  applied  to 
the  liquidation  of  said  bonds.5 

(1)    Chapter   of   Revised   Stat=  2708,  which  are  re-enacted,    and    § 

utes  relating  to  the  power  to  borrow  2709,   which   is   entirely   superseded 

money  and  issue  bonds  was  Chap.  2,  by  §  97  of  the  Code. 

Div.  9,  Title  XII  R.  S.,  §§  2700  to  (2)     Old    sections    2700    R.    S. 

2711-28.     inclusive.     Of    these     sec-  (loan   in   anticipation   of  revenue), 

tions,  all  are  exnresslv  renewed  ex-  2704  R.  S.   (borrowing  money  in  an- 

cept  §§  2701,  2703,  2706,  2707  and  ticipation   of    special   assessments), 


Code  §  95a]         power  to  borrow  money. 


275 


and  2705  R.  S.  (bonds  for  money 
borrowed  in  anticipation  of  special 
assessments),  all  repealed. 

(3)  Power  to  borrow. —  In  the 
absence  of  restrictions  a  municipal- 
ity has  implied  power  to  borrow 
money  to  carry  into  effect  other 
powers  granted.  Bank  v.  Chilli- 
cothe,  7  O.  (2nd  pt.)  31.  But  see 
Dunham  v.  Opes,  3  C.  C.  274,  282, 
where  it  is  said  that  this  doctrine 
does  not  apply  where  there  are  re- 
strictions, as  now  exist  in  Ohio. 
Where  a  municipality  is  defending 
against  paying  a  debt  on  the  ground 
of  its  want  of  power  to  borrow,  a 
strict  construction  of  powers  in  its 
favor  will  not  be  adopted.  Bank  v. 
Chillicothe,  7  O.    (2nd  pt.)    31. 

(4)  Bonds  in  anticipation  of 
assessment. —  Such  bonds  may  be 
sold  before  the  assessing  ordinance 


is  passed.  Irwin  v.  Greenville,  1 
Dayton,  140. 

As  to  injunction  against  payment 
of  such  bonds,  because  of  irregular- 
ity in  issuing,  see  Ampt  v.  Cincin- 
nati, 3  N.  P.  184. 

Validity  of  bonds.  Although  the 
statute  authorizing  the  assessment 
is  invalid,  and  assessment  cannot, 
therefore,  be  collected,  the  bonds  au- 
thorized by  same  statute  issued  in 
anticipation  of  the  assessment  may 
be  valid  and  enforceable.  Loeb  v. 
Columbia  Twp.,  179  U.  S.  472. 

(5)  Form  of  bonds.— It  was 
held,  under  the  former  statutes  that 
all  bonds  issued  under  the  authority 
of  Chap.  2,  Div.  9,  Title  XII,  R.  S., 
must  comply  with  §  2703  R.  S.,  and 
express  upon  their  face  the  purpose 
of  issue  and  the  ordinance  under 
which  issued.  Keehn  v.  Wooster, 
13  C.  C  270. 


Sec.  95a.  [Municipalities  authorized  to  issue  notes  in  anticipa- 
tion of  collection  of  special  assessments.]  Municipal  corpora- 
tions shall  have  power  to  borrow  money  and  issue  notes  in 
anticipation  of  the  collection  of  special  assessments.  Said  notes 
shall  be  signed  and  sealed  as  municipal  bonds  are  signed  and 
sealed.  They  shall  bear  interest  at  a  rate  not  exceeding  six 
per  cent,  per  annum  and  be  due  and  payable  not  later  than  two 
years  from  the  date  of  issue.  Said  notes  shall  not  exceed  in 
amount  the  estimated  cost  of  the  improvement,  and  shall  re- 
cite upon  their  face  the  purpose  for  which  they  were  issued. 
All  assessments  collected  for  the  improvement,  and  all  unex- 
pended balances  remaining  in  the  fund  after  the  cost  and 
expenses  of  said  improvement  have  been  paid,  shall  be  applied 
to  [in]  the  payment  of  the  notes  and  the  interest  thereon  until 


276  the  ohio  municipal  code.  [Code  §   96 

both  are  fully  provided  for.  Council  ordinances  and  proceed- 
ings relating  to  the  issue  of  said  bonds  [notes]  shall  not  require 
publication.      [1904,  April  27,  97  v.  520.] 

Sec.  96.  [Power  of  municipalities  to  issue  refunding  bonds.] 
Municipal  corporations  shall  have  power  to  issue  bonds  in  the 
manner  and  for  the  purposes  authorized  by  section  2701,  Re- 
vised Statutes  of  Ohio,  and  the  form  and  requisites  of  all  bonds 
shall  be  such  as  are  required  by  sections  2703,  2706,  2707  and 
2708  of  the  Revised  Statutes  of  Ohio. 

Sec.  2701  R.  S.  [Issue  of  bonds,  etc.,  to  extend  time  of  pay- 
ment] The  trustees  1  or  council  of  any  municipal  corpora- 
tion, for  the  purpose  of  extending  the  time  of  the  payment  of 
any  indebtedness,  which  from  its  limits  of  taxation  such  cor- 
poration is  unable  to  pay  at  maturity,  or  when  it  appears  to  the 
said  trustees  or  council  for  the  best  interest  of  the  said  munici- 
pal corporation,  shall  have  power  to  issue  bonds  2  of  such  cor- 
poration or  borrow  money  so  as  to  change  but  not  to  increase 
the  indebtedness,3  in  such  amounts  and  for  such  length  of  time 
and  at  such  rate  of  interest  as  the  council  may  deem  proper, 
not  to  exceed  the  rate  of  six  per  centum  per  annum,  payable 
annually  or  semi-annually;  provided,  however,  that  no  indebt- 
edness of  any  such  municipal  corporation  shall  be  funded,  re- 
funded, or  extended,  unless  such  indebtedness  shall  first  be  de- 
termined to  be  an  existing  valid  and  binding  obligation  of  any 
such  municipal  corporation 4  by  a  formal  resolution  of  the 
trustees  or  council  of  such  municipal  corporation,  which  reso- 
lution shall  also  state  the  amount  of  the  existing  indebtedness 
to  be  funded,  refunded  or  extended,  the  aggregate  amount  of 
bonds  to  be  issued  therefor,  their  number  and  denomination, 
the  date  of  maturity,  the  rate  of  interest  they  shall  bear,  and 
the  place  of  payment  of  principal  and  interest.  [92  v.  368, 
170;  89  v.  417;  70  v.  5,  §  662.] 

(1)  Trustees  referred  to  above  tended  to  give  the  right  to  issue 
apparently  means  trustees  of  hamlets  bonds  where  a  funded  indebtedness 
and  not  Sinking  Fund  trustees,  of  the  municipality  exists.  Herr- 
whose  powers  are  denned  in  §§  101-  mann  v.  Cincinnati,  9  C.  C.  357,  359 
115    of   the    Code,    inclusive.        See  (affirmed  52  O.  S.  676). 

note    "  Status    of    hamlets "    under  Under   this    section   council    may. 

§  1  of  the  Code.  when  there  are  outstanding  bonds, 

(2)  Purpose. —  This  section  does  and  before  the  maturity  of  such 
not  give  power  to  issue  bonds  of  a  bonds,  issue  refunding  bonds  to  an 
municipality  to  meet  deficiencies  in  amount  equal  to  the  original  bond 
the  various  departments.     It  is  in-  issue,    at   a   lower    rate    of   interest. 


Code  §  96] 


POWER    TO    BORROW    MONEY. 


277 


and  at  longer  time.  But  where  the 
original  bonds  were  sold  at  a  pre- 
mium, council  cannot  issue  addition- 
al bonds  in  excess  of  original  bond 
issue,  to  be  used  to  pay  holders  of 
original  bonds  for  premiums  so  paid. 
Altaffer  v.  Nelson,  Mayor,  18  C.  C. 
145.  As  to  refunding  interest  see 
Cincinnati  v.  Guckenberger,  60  O.  S. 
353. 

The  indebtedness  for  which  the 
municipality  may  issue  bonds  under 
§  2701  R.  S.  must  be  such  as  the 
municipality  has  power  to  levy  a 
tax  to  pay,  or  already  evidenced  by 
bonds,  or  such  that  bonds  could 
have  been  issued  at  the  time.  The 
mere  existence  of  claims  for  which 
in  some  manner  the  municipality  is 
or  may  be  made  liable  is  not  suffi- 
cient. Newton  v.  Toledo,  18  C.  C. 
756,  762   (affirmed  52  O.  S.  649). 

Validity  in  general. —  Bonds 
made  out  in  the  name  of  the  "  town 
of  Perrysburg "  when  the  correct 
name  was  the  "  incorporated  village 
of  Perrysburg "  were  held  valid. 
Fosdick  v.  Perrysburg,  14  O.  S. 
472. 

Bonds  to  refund  will  not  be  valid 
if  the  original  bond  issue  was  uncon- 
stitutional. Keehn  v.  Wooster,  13 
C.  C.  270. 

Bonds  issued  on  faith  of  Supreme 
Court  decision,  will  not  be  invalid- 
ated by  a  subsequent  decision  deny- 
ing the  right  to  issue  such  bonds. 
Gelpke  v.  Dubuque,  68  U.  S.  175, 
followed,  State  v.  Gibson,  8  N.  P. 
367. 

Bonds  issued  under  authority  of 
the  legislature  to  pay  the  moral  ob- 
ligation of  a  county  though  the 
claimants  thereon  had  no  cause  of 
action  cognizable  in  a  court  of  law, 
will  be  upheld  and  their  payment 
enforced  against  the  county.  N.  Y. 
Life  Ins.  Co.  v.  Cuyahoga  Co.,  106 
Fed.  123. 

Where  a  municipality  has  issued 
its  bonds  impressed  with  the  seal  of 
the  city  clerk,  not  having  a  seal  of 
the  corporation,  but  the  bonds  recit- 
ing  that   the    seal   attached    is    the 


"corporate  seal,"  the  municipality 
is  estopped  to  deny  the  validity  of 
such  seal.  Defiance  v.  Schmidt,  14 
O.  F.  D.  408. 

Certain  bonds  of  the  city  of  Defi- 
ance recited  on  their  face  that  they 
were  "issued  under  and  pursuant  to 
the  laws  of  the  State  of  Ohio,  and 
an  act  of  the  General  Assembly 
passed  Feb.  3,  1887,  entitled,  etc." 
Held  that  such  bonds  were  valid, 
even  though  the  particular  act  re- 
ferred to  was  unconstitutional  and 
furnished  no  authority  for  their  is- 
sue, since  authority  was  elsewhere 
to  be  found  in  the  statutes.  Defi- 
ance v.  Schmidt,  14  O.  F.  D.  408. 

Purchase  for  value  without  no= 
tice. —  Where  power  is  given  to 
issue  bonds  on  certain  conditions, 
and  the  bonds  purport  to  be  issued 
under  such  law,  they  will  be  good 
in  the  hands  of  bona  fide  purchasers, 
notwithstanding  irregularity  in  the 
acts  of  the  authorities  issuing  them. 
State  ex  rel.  v.  Board  of  Ed.,  27  O. 
S.  96.  See  further  State  v.  Com- 
missioners, 37  O.  S.  526. 

Where  a  municipality  has  power, 
as  under  this  section,  to  borrow  for 
certain  purposes,  a  bona  fide  lender 
will  be  protected,  although  the 
money  was  desired  for  an  illegal 
purpose.  Ohio  Farmers'  Ins.  Co.  v. 
New  Philadelphia,  17  B.  250. 

And  the  mere  failure  to  comply 
with  the  statutory  provisions  relat- 
ing to  the  issue  of  bonds  will  not 
relieve  the  municipality  from  the 
obligation  to  repay  the  money  bor- 
rowed on  the  faith  of  such  bonds. 
Ampt  v.  Cincinnati,  3  N.  P.  184. 

But  bonds  issued  where  no  power 
to  issue  has  been  given  by  the  leg- 
islature are  invalid  even  in  the 
hands  of  bona  fide  purchasers. 
Ampt  v.  Cincinnati,  3  N.  P.  184, 
and  cases  cited. 

Where  an  injunction  was  allowed 
restraining  the  issuing  of  certain 
municipal  bonds,  the  decree  being 
entered  before  the  date  of  the  bonds 
or  the  time  when  they  purported  to 
be  signed  and  before  the  ordinance 


278 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  96 


authorizing  them  could  go  into  op- 
eration under  the  statute,  the  fact 
that  the  bonds  were  in  fact  signed 
before  the  injunction  was  allowed, 
and  sold  will  not  protect  the  pur- 
chasers thereof  as  innocent  purchas- 
ers for  value.  Altaffer  v.  Nelson, 
Mayor,  18  C.  C.  145.  But  the 
rights  of  a  bona  fide  holder  are  not 
affected  by  the  fact  that  bonds  bear 
a  date  prior  to  that  of  ordinance 
authorizing  them.  Kent  v.  Dana, 
100  Fed.  56;  40  C.  C.  A.  281. 

A  bond  under  §  2701  R.  S.  must 
show  on  its  face  the  purpose  for 
which  issued,  and  the  ordinance  or 
resolution  authorizing  it,  in  order 
that  a  purchaser  may  claim  to  be  a 
purchaser  for  value  without  notice. 
Keehn  v.  Wooster,  13  C.  C.  270. 

Where  the  bond  does  not  recite 
any  ordinance  or  resolution  author- 
izing its  issue,  it  is  not  negotiable 
paper.  Sullivan  v.  Urbana,  3  Dec. 
(Re.)  554.  If  such  bond  was  in  fact 
fraudulently  issued,  bona  fide  pur- 
chasers will  not  be  protected.     lb. 

The  presumption  is  that  the 
holder  of  bonds  acquired  them  in 
good  faith  and  for  value.  Ampt  v. 
Cincinnati,  3  N.  P.  184,  and  cases 
cited. 

*A  purchaser  cannot  be  charged 
with  negligence  in  not  anticipating 
that  the  law  under  which  the  bonds 
were  issued  would  be  held  uncon- 
stitutional. Life  Ins.  Co.  v.  Cuya- 
hoga Co.,  106  Fed.  123. 

The  bona  fide  purchaser  of  county 
bonds  issued  by  officers  having  no 
authority  to  issue  them  was  held 
not  to  be  protected.  In  such  case 
the  bonds  are  void.  State  v.  Gib- 
son, 8  N.  P.  367;  Hubbard  v.  Fitz- 
simmons,  57  O.  S.  436. 

Limitations  that  purchaser  is 
bound  to  take  notice  of.  See  Miller 
v.   Hixson,   64  O.   S.   39. 

The  recital  in  a  bond  that  it  is 


issued  in  pursuance  of  an  act  of  the 
legislature  and  ordinances  of  the 
city  council  passed  in  pursuance 
thereof,  does  not  put  a  purchaser 
upon  inquiry  as  to  the  terms  of  the 
ordinances  under  which  the  bonds 
were  issued.  Evansville  v.  Dennett, 
161  U.  S.  434;  Schmidt  v.  Defiance, 
13  O.  F.  D.  229. 

Estoppel  by  recitals. — "  It  is 
now  firmly  established  by  decisions 
that  if  a  municipality  has  power  to 
and  does  issue  bonds  containing  re- 
citals of  fact  and  such  bonds  come 
into  the  hands  of  innocent  purchas- 
ers, such  city  is  estopped  from  de- 
nying the  truthfulness  of  such 
recitals."  Defiance  v.  Schmidt,  14 
O.  F.  D.  408 ;  Northern  Bank  v.  Por- 
ter Township,  5  O.  F.  D.  256. 

Where  payable. —  Bonds  can  be 
made  payable  outside  the  state. 
Meyer  v.  Muscatine,  1  Wall.  (U.  S.) 
384,  391;  Lynde  v.  Wennebago  Co., 
16  Wall.   (U.  S.)   6. 

(3)  Not  to  increase  indebted- 
ness.—  Where  a  municipality  is  is- 
suing bonds  to  refund  its  bonded 
indebtedness,  it  cannot,  even  by  a 
separate  resolution,  issue  additional 
bonds  (besides  those  equal  the 
amount  of  the  original  bonds)  to 
pay  compensation  for  premiums 
paid  by  holders  of  original  bonds. 
Altaffer  v.  Nelson,  Mayor,  18  C.  C. 
145.  And  see  last  sentence  §  97  of 
the  Code,  infra.  As  to  refunding 
interest,  see  Cincinnati  v.  Gucken- 
berger,  60  O.  S.  353. 

( 4 )  Indebtedness  first  declared. 
—  In  a  petition  in  mandamus  to 
compel  the  mayor  to  sign  certain  re- 
funding bonds,  the  absence  of  aver- 
ment that  the  council  first  declared 
the  debt  to  be  valid  and  described 
the  bonds,  will  be  fatal,  on  de- 
murrer. State  v.  Staley,  18  C.  C. 
406   (affirmed  60  O.  S.  632). 


PORM  OF  RESOLUTION  TO  ISSUE  BONDS  UNDER  SEC.  2701  R.  S. 


Resolution 

To  provide  for  the  issue  of  bonds  of  the  city  [or  village]  of 

in  the  sum  of  $ ,  for  the  purpose  of  extending  the  time  of  pay- 
ment of  certain  indebtedness  which  from  its  limits  of  taxation  the  said 
city  [or  village]  is  unable  to  pay  at  maturity. 

Be  it  resolved  by  the  council  of  the  city  [or  village]  of 

State  of  Ohio : 


Code  §  96]  power  to  borrow  money.  279 

Sec.    1.     That  certain  indebtedness  heretofore  incurred  by  the  city   [or 

village]    of ,   to-wit,   that  incurred    in    (here   state    the 

manner  in  which  the  indebtedness  was  incurred)  to  the  amount  of  1$ 

is  hereby  determined  and   declared   to  be  an   existing,  valid   and   binding 
obligation  of  said  city  [or  village]. 

Sec.  2.  To  provide  means  to  extend  the  time  of  payment  of  said  in- 
debtedness  which    from   its   limits    of   taxation    the   city    [or   village]    ol 

is  unable  to  pay  at  maturity  there  shall  be  issued  the 

bonds    of    the   city    [or    village]    of to    an    aggregate 

amount  of  $ ,  which  said  bonds  shall  be  in  the  denomination 

of  $ each,  and  numbered  consecutively  from  one  to , 

all   made    payable    at ,    in   the   city    [or    village]    of 

,  State  of ,  and  all  bearing  inter- 
est  at  the   rate  of ...per  cent,   per  annum,   payable   annually    [or 

semi-annually]  at  the  same  place;  and  said  bonds  shall  be  dated  and  shall 
run  for  a  period  of years  from  their  date. 

Sec.  3.  Said  bonds  shall  express  upon  their  face  the  purpose  for  which 
they  were  issued  and  that  they  were  issued  in  pursuance  of  this  resolution. 
They  shall  be  prepared,  issued  and  delivered  under  the  direction  of  the 
finance  committee  of  council  (or  other  committee,  if  desired)  and  the  city 
auditor  [or  village  clerk]  and  shall  be  signed  by  the  mayor  of  said  city 
[or  village]  and  by  the  city  auditor  [or  village  clerk]  and  sealed  with  the 
corporate  seal  of  said  city  [or  village]  ;  and  interest  coupons  attached  to 
said  bonds  shall  be  executed  by  the  city  auditor  [or  village  clerk]  with  his 
signature  thereto,  or  he  shall  have  his  signature  printed  or  lithographed 
thereon. 

(If  registered  bonds  are  issued  instead  of  coupon  bonds,  substitute  the 
following  for  Sec  3.  "  Sec.  3.  Said  bonds  shall  express  upon  their  face 
the  purpose  for  which  they  were  issued  and  shall  refer  to  this  resolution. 
They  shall  be  prepared,  issued  and  delivered  under  the  direction  of  the 
Finance  Committee  of  council  (or  other  committee,  if  desired)  and  the  city 
auditor  [or  village  clerk]  and  shall  be  signed  by  the  mayor  of  said  city 
[or  village]  and  by  the  city  auditor  [or  village  clerk]  and  sealed  with  the 
corporate  seal  of  said  city  [or  village].  Said  bonds  shall  be  registered  in 
the  office  of  the  Trustees  of  the  sinking  fund  in  the  name  of  the  purchaser 
and  shall  bear  interest  as  aforesaid.") 

Sec.  4.  Said  bonds  shall  be  first  offered  at  par  and  accrued  interest  to 
the  trustees  of  the  sinking  fund  in  their  official  capacity  and  if  the  sinking 
fund  trustees  refuse  to  take  any  or  all  said  bonds  at  par  and  interest,  then 
said  bonds  not  so  taken  shall  be  advertised  for  public  sale  and  sold  in  the 
manner  provided  by  law,  but  not  for  less  than  their  par  value  and  accrued 
interest.  The  proceeds  from  the  sale  of  said  bonds,  except  the  premiums 
and  accrued  interest  thereon,  shall  be  used  for  the  purpose  of  paying  the 
indebtedness  aforesaid  and  for  no  other  purpose;  and  the  premiums  and 
accrued  interest  received  from  such  sale  shall  be  transferred  to  the  trustees 
of  the  sinking  fund  to  be  applied  by  them  in  the  manner  provided  by  law. 

Sec.  5.  This  resolution  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed 19 ••  •  ■ ■•  • ., 

President  of  Council. 

Attest:      ,  Clerk. 


280  the  ohio  municipal  code.  [Code  §  96 

Note:  In  the  form  above  given  the  action  of  council  is  called  a  "  resolu- 
tion," in  accordance  with  the  provisions  of  §  2701  R.  S.,  §  2703  R.  S., 
infra,  requires  that  bonds  shall  express  upon  their  face  the  "  ordinance " 
under  which  they  are  issued.  It  would  seem,  however,  that  bonds  issued 
under  §  2701  need  not  be  authorized  by  both  a  resolution  and  an  ordinance, 
and  that  one  would  include  the  other.     See  note  to  §  2703  infra. 

The  form  above  given  provides  only  for  cases  in  which  bonds  are  to  be 
sold  to  take  up  and  thus  postpone  the  final  extinguishment  of,  an  existing 
indebtedness.  This  may  readily  be  adapted  to  other  circumstances  con- 
templated in  §  2701.  If  it  is  desired  to  exchange  new  bonds  for  old  and 
reduce  the  rate  of  interest  on  obligations  not  matured,  this  may  be  done 
under  §  97  of  the  Code,  infra,  and  an  adaptation  of  the  above  form  may 
be  used. 

FORM  OF  MUNICIPAL  BOND. 
No $ 


UNITED  STATES  OF  AMERICA. 
STATE  OF  OHIO. 


The  city  [or  village]  -  of 

BOND. 

KNOW  ALL  MEN  BY  THESE  PRESENTS:     That  the  city  [or  village] 

of ,  a  municipal  corporation  under  the  laws  of  the 

State  of  Ohio,  is  indebted  to  the  bearer  hereof  in  the  sum  of  $ 

which  said  city   [or  village]   promises  to  pay  on  the day  of 

,  in  the  year ,   at ,   in  the  city 

[or  village]  of ,  State  of ,  with  interest  thereon  at 

the  rate  of per  cent,  per  annum,  payable  annually  [or  semi-annually] 

on  the  first  day  [or  days]  of ,  [or  and ]  in  each 

year  at ,  in  the  city  [or  village]  of 

State  of upon  the  presentation  and.  surrender  of  the 

interest  coupons  hereto  attached  as  they  severally  become  due. 

This  bond  is  issued  for  the  purpose  of    (here  state  purpose)    and  under 

authority  of  the  laws  of  Ohio  and  of  § of  the  Revised  Statutes  of 

Ohio  [or  of  an  act  of  the  General  Assembly  of  the  State  of  Ohio  passed  on 

the day  of .  .  ., ,  entitled  an  act,  etc.]  and  under 

and  in  accordance  with  a  certain  resolution  of  the  said  city  [or  village]  of 

,  entitled (here  state  title  of  resolution) 

passed  on  the day  of ,  19 ....  ;  and  all  proceed- 
ings relating  to  this  bond  have  been  in  strict  compliance  with  the  said 
laws,  statute  and  resolution  aforesaid. 

This  bond  is  one  of  a  series  of  bonds  of  like  date  and  effect  numbered 

consecutively  from  one  to and  amounting  in  the  aggregate  to 

$ ,  said  bonds  being  in  the  principal  sum  of  $ .  . each. 

IN  WITNESS  WHEREOF,  the  said  city  [or  village]  of has 

caused  its  corporate  name  and  seal  to  be  hereunto  affixed  and  the  signatures 
of  its  mayor  and   auditor    [or  clerk]    to  be  hereunto   subscribed   by  said 


Code  §  96]  power  to  borrow  money. 


281 


officers,  duly  authorized  in  the  premises,  this day  of. 

19 

The  city  [or  village]   of 


Mayor. 


Auditor  [or  clerk], 


(Corporate  Seal.) 


COUPON. 

On  the day  of the  city    [or  village] 

of .  .  . ,  State  of  Ohio,  promises  to  pay  the  bearer 

at in  the  city  [or  village]   of State 

of ,  $ ,  being  one  year's   [or  six  months'] 

interest  due  on  that  day  on  its  Bond  No 


City  Auditor   [or  village  clerk]. 


Sec.  2703  R.  S.  [Bonds  to  be  explicit  on  their  face.]  All 
bonds  issued  under  authority  of  this  chapter  *  shall  express 
upon  their  face  the  purpose  for  which  they  were  issued,  and 
under  what  ordinance.2      [66  v.  262,  §  664:.] 


(1)  See  note  (1)  to  §  95  of  the 
Code. 

(2)  When     recital    required. — 

All  municipal  bonds  issued  under 
authority  of  former  chapter  begin- 
ning with  §  2700  R.  S.,  were  held  to 
be  subject  to  requirement  of  §  2703 
R.  S.  Keehn  v.  Wooster,  13  C.  C. 
270. 

So,  bonds  to  extend  the  time  of 
payment  of  certain  indebtedness, 
must  comply  with  this  section.     lb. 

But  notes  given  for  a  municipal 
loan  need  not  express  upon  their 
face  the  purpose  for  which  given. 
ft  2703  applies  only  to  bonds  issued 
to  be  sold  to  the  highest  bidder. 
Ohio  Farmers'  Ins.  Co.  v.  New  Phil- 
adelphia,  17  B.  250. 

Sufficiency  of  recital. —  Bonds 
given  to  refund  void  bonds,  reciting 
merely  that  they  were  given  to  take 
up  other  bonds,  "  as  provided  in  an 
ordinance"  of  the  municipality,  are 
not  valid,  where  there  was  no  ordi- 
nance for  their  issue.  U.  S.  Trust 
Co.  v.  Mineral  Ridge,  104  Fed.  851. 


See  also,  as  to  sufficiency  of  state- 
ment of  purpose,  Hensly  v.  Hamil- 
ton, 3  C.  C.  201  j  Keehn  v.  Wooster, 
13  C.  C.  270;  Kent  v.  Dana,  100 
Fed.  56,  40  C.  C.  A.  281;  Clapp  v. 
Marice  City,    111   Fed.   103. 

Effect  of  non  recital. —  A  bond 
not  containing  a  reference  to  the 
ordinance  or  resolution  authorizing 
it  was  held  not  to  be  negotiable 
paper.  Sullivan  v.  Urbana,  3  Dec. 
(Re.)   554    (Ohio  Law  Journal). 

Municipality  will  not  be  estopped 
to  deny  legality.  Keehn  v.  Wooster, 
13  C.  C.  270;  and  no  one  can  claim 
to  be  innocent  purchaser  of  such 
bond.     lb. 

Estoppel  by  recitals. —  See  notes 
to  §  2701  R.  S.,  supra,  p.  278. 

Ordinance  referred  to  in  §  2703 
R.  S.  above,  doubtless  covers  the 
"  formal  resolution "  required  in  § 
2701  R.  S.  supra.  "Ordinance" 
and  "  resolution "  mean  the  same 
thing  when  the  procedure  respect- 
ively required  is  complied  with. 
Kerlin  Bros.  v.  Toledo,  20  C.  C.  603. 


282  the  ohio  municipal  code.  [Code  §  97 

Sec.  2706  R.  S.     [Form  and  requisites'  of  municipal  bonds,  etc.] 

All  bonds,  notes  or  certificates  of  indebtedness  issued  by  muni- 
cipal corporations  shall  be  signed  by  the  mayor  and  by  the  au- 
ditor, comptroller  or  the  clerk  thereof,  and  be  sealed  with  the 
seal  of  the  corporation,1  and  when  issued  for  street  improve- 
ments shall  have  the  name  of  the  street  or  portion  thereof  so 
improved,  and  for  which  the  same  were  issued,  legibly  written 
or  printed  upon  them.  [1883,  March  21 :  80  v.  66 ;  Kev.  Stat. 
1880;  66  v.  86,  §  666.] 

( 1 )  Duty  of  officers. —  It  would  Seal. —  Where  bonds  are  sealed 
be  a  breach  of  duty  for  the  mayor  with  the  seal  of  the  city  clerk,  but 
to  sign  bonds  containing  false  re-  contain  a  recital  that  the  seal  is  the 
citals  as  to  matters  and  things  re-  corporate  seal,  the  city  will  be  es- 
quired to  be  done  to  make  the  bonds  topped  to  deny  validity  of  seal.  lb. 
valid.  Defiance  v.  Schmidt,  14  O.  1 . 
D.  408. 

Sec.  2707  E.  S.  [Bonds  may  have  coupons  attached.]  Bonds 
issued  as  provided  in  this  chapter  1  may,  in  the  discretion  of 
the  council,  have  interest  coupons  attached.2  [66  v.  262,  § 
667.] 

(1)  See  note  (1)  under  §  95  of  pons.  State  ex  rel.  v.  Comm'rs,  6 
the  Code,  supra,  p.  274.  O.  S.  280,  286. 

(2)  Interest  coupons.  —  The  Possession  of  interest  warrants  is 
power  to  issue  interest  bearing  prima  facie  evidence  of  ownership 
bonds  was  held  to  include,  of  itself,  of  bonds  and  their  non-payment.  lb. 
the  authority  to  attach  interest  cou- 

Sec.  2708  R.  S.  [Character  of  bonds  in  certain  cases.]  Where 
the  corporation  is  divided  into  districts  for  sewerage  purposes, 
bonds  issued  for  money  borrowed  to  pay  the  expense  of  con- 
structing or  repairing  sewers  in  any  such  district,  shall  have 
the  name  and  number  of  the  district  for  which  they  are  issued 
legibly  written  or  printed  upon  them.      [66  v.  262,  §  668.] 

Sec.  97.  [Municipal  bonds  first  offered  to  trustees  of  sinking 
fund.]  J  Municipal  bonds  shall  be  sold  in  the  manner  herein 
provided.  Whenever  any  municipal  corporation  issues  its 
bonds,  it  shall  first  offer  them  at  par  and  accrued  interest  to 
the  trustees  or  commissioners,  in  their  official  capacity,  of  the 
sinking  fund,  or,  in  case  there  are  no  such  trustees  or  commis- 
sioners,  to  the  officer  or  officers  of  such   corporation  having 


Code  §  97]  power  to  borrow  money.  283 

charge  of  its  debts,  in  their  official  capacity,  and  only  after  their 
refusal  to  take  all  or  any  of  such  bonds  at  par  and  interest, 
bona  fide  for  and  to  be  held  for  the  benefit  of  such  corporation, 
sinking  fund  or  debt,  shall  such  bonds,  or  as  many  of  them 
as  remain,  be  advertised  for  public  sale. 

[Not  to  be  sold  for  less  than  par  value.]  In  no  case  shall  the 
bonds  of  the  corporation  be  sold  for  less  than  their  par  value ;  2 
nor  shall  such  bonds  when  so  held  for  the  benefit  of  such  sink- 
ing fund  or  debt,  be  sold,  except  when  necessary  to  meet  the 
requirements  of  such  fund  or  debt. 

[Sold  to  highest  bidder  after  notice  by  publication.]  All  sales 
of  bonds,  other  than  to  the  sinking  fund,  by  any  municipal  cor- 
poration, shall  be  to  the  highest  and  best  bidder,3  after  thirty 
days'  notice  in  at  least  two  newspapers  of  general  circulation 
in  the  county  where  such  municipal  corporation  is  situated,  set- 
ting forth  the  nature,  amount,  rate  of  interest  and  length  of 
time  the  bonds  have  to  run,  with  time  and  place  of  sale.4  Ad- 
ditional notice  may  be  published  outside  of  such  county  by 
order  of  the  council, 

[When  may  be  sold  at  private  sale.]  provided,  however,  when 
any  such  bonds  have  been  once  so  advertised  and  offered  for 
public  sale,  and  the  same  or  any  part  thereof,  remain  unsold, 
then  said  bonds,  or  as  many  as  remain  unsold,  may  be  sold  at 
private  sale  at  not  less  than  their  par  value,  under  the  direc- 
tion of  the  mayor  and  the  officers  and  agents  of  the  corporation 
by  whom  said  bonds  have  been,  or  shall  be,  prepared,  adver- 
tised and  offered  at  public  sale;' 

[Refunding  of  corporate  indebtedness.]  provided,  further, 
that  when  it  shall  appear  to  the  trustees  or  council  of  any  mu- 
nicipal corporation,  to  be  for  the  best  interests  of  such  corpo- 
ration to  renew  or  refund  any  bonded  indebtedness  of  such  cor- 
poration which  shall  not  have  matured,  and  thereby  reduce 
the  rate  of  interest  thereon,  such  trustees  or  council  shall  have 


284 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    97* 


authority  to  issue  for  that  purpose  new  bonds,  with  semi-annual 
interest  coupons  attached,  and  to  exchange  the  same  with  the 
holder  or  holders  of  such  outstanding  bonds,  if  such  holder 
or  holders  shall  consent  to  make  such  exchange  and  to  such  re- 
duction of  interest." 

When  new  bonds  are  issued  the  same  shall  not  in  any  case 
exceed  in  amount  the  outstanding  bonded  indebtedness  to  be 
renewed  or  refunded. 


(1)  Old  section.— §  2709  R.  S. 
as  amended  in  95  O.  L.  507,  is  sub- 
stantially re- written  as  §  97  above, 
though  the  old  statute  is  not  ex- 
pressly repealed  by  the  Code.  It  is, 
however,  clearly  superseded. 

(2)  Sale  for  less  than  par. — 
Bonds  sold  for  less  than  par,  though 
void  in  the  hands  of  one  who  ille- 
gally bought  them  are  not  void  as 
against  an  innocent  purchaser  into 
whose  hands  they  subsequently 
came.  State  ex  rel.  v.  Board  of 
Education,  27  O.  S.  96. 

( 3 )  Highest  bidder.—  City  coun- 
cil's discretion  in  determining  which 
is  the  highest  and  best  bid  if  bids 
were  uncertain,  will  not  be  inter- 
fered with.  Irwin  v.  Greenville,  1 
Dayton,  140. 

See  further  as  to  discretion, 
Guckenberger  v.  Dexter,  5  N.  P. 
429;    60  O.  S.  353. 

Where  the  terms  of  the  highest 
bid  are  clearly  understood  by  buyer 
and  seller  and  the  bid  is  accepted 
there  can  be  complaint,  as  to  ambi- 
guity in  the  terms,  by  other  bidders. 
Atlas  Bank  v.  Cincinnati,  11  Dec. 
436. 

Compliance  with  advertise- 
ment.— A  bid  of  103  5-10  with  in- 
terest is  not  ambiguous  and  suffi- 
ciently complies  with  an  advertise- 
ment requiring  the  gross  amount 
of  the  bid  to  be  stated.  Atlas  Bank 
V.  Cincinnati,  11  Dec.  436. 

A  bid  offering  par  and  accrued 
interest  to  date  complies  with  ad- 
vertisement stating  that  no  bid  will 


be  received  for  less  than  par  and 
accrued  interest  "  to  date  of  deliv- 
ery "  for  the  bid  will  be  construed 
as  meaning  payment  of  interest 
from  date  of  issue  to  date  of  deliv- 
ery. Hayes  v.  Board  of  Education, 
22  C.  C.  32  (aff'd,  68  O.  S.  685). 

Right  to  reject  all  bids. —  See 
upon  general  subject  of  right  to  re- 
ject all  bids  whether  or  not  ex- 
pressly conferred  by  statute,  State 
ex  rel.  v.  Cincinnati,  3  C.  C.  542; 
State  ex  rel.  v.  Comm'rs,  36  O.  S. 
326;  State  v.  Comm'rs,  39  O.  S. 
188;  State  ex  rel.  v.  Comm'rs,  1  C. 
C.  194;  State  ex  rel.  v.  Directors,  5 
O.  S.  234. 

(4)  Sufficiency  of  advertise= 
ment. —  An  advertisement  stating 
that  the  bonds  are  to  be  delivered 
on  a  certain  day  is  sufficient  and 
the  sale  is  valid,  although  on  the 
day  set  for  delivery,  but  before  the 
bidding,  it  is  announced  that  the 
bonds  will  be  delivered  in  install- 
ments covering  a  period  of  four 
months,  giving  the  purchaser  the 
benefit  of  the  interest  accruing  upon 
tue  later  installments.  Franklin  v. 
Baird,  7  N.  P.  571. 

A  bidder  cannot  complain  of  a 
variance,  as  to  the  time  of  redemp- 
tion, between  the  advertisement  and 
the  resolution  •  authorizing  the 
bonds,  where  the  bonds  were  made 
payable  according  to  the  advertise- 
'  ment.  State  ex  rel.  v.  Allison,  8 
N.  P.  170. 

Whether  objection  can  be  raised  aa 
to  sufficiencv  of  advertisement  after 


Code  §  97]  power  to  borrow  money.  285 

bonds    have    been    issued    and    the  and  best  bidder  after  advertisement 

money  is  in  the  treasury,  see  State  Cincinnati  v.  Guckenberger,  60  O.  b. 

t         at      io  -^       ,„  353;  Roberts  &  Co.  v.  Taft,  109  Fed. 

ex  rel.  v.  Amlin,  13  Dec.  334.  g25.   4g  c    c    A    6gl      gee  also  § 

When  sold.— Bonds  for  improve-  n5  0f  the  Code, 
ment  may  be  sold  before  the  assess-  (5)  Private  sale. — When  bonds 
ing  ordinance  has  been  passed.  Ir-  were  duly  offered  and  bids  received 
~  .„  .  ^  ,  _.A  by  proper  municipal  officers,  but  be- 
win  v.  Greenville,  1  Dayton,  140.  f^  ^  for  awarding?  municipal- 
Bonds  sold  before  date  will  not  be  ity  was  enjoined  from  awarding  the 
good  in  the  hands  of  a  bona  fide  bonds  and  thereupon  all  bids  were 
purchaser  when  injunction  against  withdrawn  (as  they  could  be,  any 
..  .  .  „  ,  ,  ,  ,,  time  before  acceptance),  the  offi- 
their  issue  was   allowed  before  the  cerg  might  lawfulfy  sell  such  bonds 

date  of  the  bonds.     Altaffer  v.  Nel-  at  private  sale.     Vadakin  v.  Crilly, 

son,  mayor,   18  C.  C.  145.  7  C.  C.  (N.  S.)  341  (aff'd,  73  O.  S. 

380). 

Sinking  fund  bonds,  issued  to  (6)   Forms  0f  ordinance  or  reso- 

refund    or    extend    existing    obhga-  ]ution   effecting  such  exchange  and 

tions,  as  authorized  by  §  113  of  the  of  the  new  bonds  to  be  exchanged 

Code,  are  subject  to  the  provisions  for   the   old   mav  be   adapted   from 

of    §97    above    (old    §2709   R.  .8.)  forms      iven    under    §    2701    R.    S. 

and  can  be  sold  only  to  the  highest  snpra   p   278. 

FORM  OF  NOTICE  OF  SALE  OF  BONDS. 

Legal  Notice. 

Sealed  proposals  will  be  received  at  the  office  of  the  auditor  [or  clerk] 

of  the  city  [or  village]  of ,  State  of  Ohio,  until  12  o'clock 

noon  of ,  19. .  . .,  for  the  purchase  of  bonds  of  the  said 

city   [or  village] ,   in  the  aggregate  sum  of  $ dated  the 

day  of ,  19 .... ,  payable  in 

years  from  date,   each  being  in  the  sum  of   $ ,   and  bearing 

interest  at  the  rate  of per  cent,  per  annum,  payable  annually  [or 

semi-annually],   issued   for  the   purpose  of    (here  state  purpose  of  issue) 

And  under  authority  of  the  laws  of  Ohio  and  of  §    of  the  Revised 

Statutes  of  Ohio  [or  of  an  act  of  the  General  Assembly  of  the  State  of  Ohio 

passed  on  the day   of ,    ,  entitled  an  act 

*tc.],  and  under  and  in  accordance  with  a  certain  ordinance  [or  resolution] 

of  the  said  city  [or  village]  entitled  (here  state  title)  passed  on  the 

*iay  of ,  19 

Said  bonds  will  be  sold  to  the  highest  and  best  bidder  for  not  less  than 
par  and  accrued  interest. 

All  bids  must  state  the  number  of  bonds  bid  for  and  the  gross  amount  of 
bid  and  accrued  interest  to  date  of  delivery  (and  if  desired,  add,  "All 
bids  to  be  accompanied  with  a  certified  check,  payable  to  the  treasurer  of 

the  city  [or  village]  for per  centum  of  the  amount  of  bonds  bid  for, 

upon  condition  that  if  the  bid  is  accepted  the  bidder  will  receive  and  pay 
for  such  bonds  as  may  be  issued  as  above  set  forth,  within  ten  days  from 
the  time  of  award,  said  check  to  be  retained  by  the  city  [or  village]  if  said 
condition  is  not  fulfilled.") 

The  city  [or  village]   of reserves  the  right  to  reject 

any  and  all  bids. 

Bids  should  be  sealed  and  endorsed  "  bids  for bonds." 


19 Auditor  [or  clerk]. 


286  the  ohio  municipal  code.      [Code  §§  98,  99 

Sec.  98.  [Registration  of  bonds.]1  Municipal  corporations 
may,  on  demand  of  the  owner  or  holder  of  any  of  its  coupon 
bonds  heretofore  or  hereafter  issued,  issue  in  lieu  thereof  a 
registered  bond,  or  bonds,  of  the  corporations  not  exceeding  in 
amount  the  coupon  bonds  offered  in  exchange.  The  registered 
bond  or  bonds  shall  be  signed  and  sealed  as  other  municipal 
bonds  are  signed  and  sealed,  and  bear  the  same  rate  of  interest, 
be  payable  both  principal  and  interest  at  the  same  time  and 
place,  as  the  coupon  bonds  for  which  the  exchange  is  made. 
They  shall  be  of  such  denomination  as  the  holder  of  the  coupon 
bonds  may  elect.  The  interest  and  principal  of  such  regis- 
tered bonds  shall  when  due  be  paid  only  to  the  person,  cor- 
poration or  firm,  appearing  by  the  records  of  the  municipal 
corporation  to  be  the  owner  thereof,  or  order;  and  such  regis- 
tered bonds  may  be  transferred  on  said  record  by  the  owner 
in  person  or  by  a  person  authorized  so  to  do  by  power  of  attor- 
ney duly  executed.  The  exchange  and  registration  here  re- 
quired shall  be  transacted  by  the  trustees  of  the  sinking  fund 
at  their  business  office  where  a  registry  shall  be  kept  for  that 
purpose  which  shall  show  the  date,  series,  denomination  and 
owner  of  such  registered  bonds,  and  the  number  and  series  of 
the  coupon  bonds  for  which  they  were  exchanged.  ~No  regis- 
tered bonds  shall  be  issued  by  a  municipal  corporation  until 
the  bonds  and  coupons  offered  in  exchange  shall  have  been  can- 
celled or  destroyed.  The  trustees  of  the  sinking  fund  may 
demand  of  the  holder  of  the  coupon  bonds  a  reasonable  fee  as 
compensation  for  the  expense  of  making  such  exchange. 
[1904,  April  27,  97  v.  516.] 

(1)   Old  section  2711  R.  EL,  repealed. 

[Sec.  99.  [Deficiency  bonds;  limitation;  submission  of  question 
to  vote.]  Council  shall  have  power  to  issue  deficiency  bonds 
in  such  amount  and  denominations  and  for  such  periods  of  time, 
not  exceeding  fifty  years  and  at  such  rate  of  interest  not  ex- 


Code  §  100]       LONGWOKTH  BOND  ACT.  287 

ceeding  six  per  cent,  as  it  shall  deem  best  whenever,  in  the 
opinion  of  council,  it  is  necessary  to  supply  a  deficiency  in  the 
revenues  of  the  corporation;  provided,  that  the  total  amount 
of  such  deficiency  bonds  issued  by  any  corporation,  outstanding 
at  any  time,  shall  not  exceed  one  per  cent,  of  the  total  value  of 
all  property  in  such  corporation  as  listed  and  assessed  for  tax- 
ation; and  provided  further,  that  the  issuance  of  such  bonds 
shall  be  approved  by  the  votes  of  two-thirds  of  all  the  mem- 
bers elected  to  council,  and  approved  by  the  votes  of  two-thirds 
of  all  the  electors  of  the  corporation  voting  upon  such  question 
at  a  regular  or  special  election  to  be  provided  for  by  council. 

Forms  for  the  above  may  be  2837  R.  S.,  re-enacted  in  §  100  of 
adapted  from   those  given  under   §       the  Code,  infra,  p.  294. 

Sec.  100.  [General  provisions  relative  to  bonds.]  All  munici- 
pal corporations  shall  have  power  to  issue  bonds  for  the  various 
purposes,  to  the  amounts  and  with  the  limitations  provided  in 
the  act  passed  April  29,  1902,  entitled  "  An  act  to  amend  sec- 
tions 2835,  2836  and  2837  and  to  repeal  section  2837a  of  the 
Kevised  Statutes  of  Ohio,  authorizing  the  issue  of  bonds  by 
cities,  villages,  hamlets  and  townships,"  and  such  act  shall  be 
and  remain  in  full  force  and  effect;  all  premiums  and  accrued 
interest  received  by  the  corporation  from  a  sale  of  its  bonds 
shall  be  transferred  to  the  trustees  of  the  sinking  fund  to  be 
by  them  applied  on  the  bonded  debt  and  interest  account  of  the 
corporation;  provided,  that  the  premiums  and  accrued  interest 
upon  bonds  issued  for  special  assessments  shall  be  applied  by 
the  trustees  of  the  sinking  fund  to  the  payment  of  the  prin- 
cipal and  interest  of  those  bonds  and  no  others. 

{b)  Longivorth  Bond  Act.1 

Sec.  2835  R.  S.  [Townships  and  municipalities  may  issue 
and  sell  bonds  for  purposes  specified  in  this  act.]-  The  trus- 
tees of  any  township,  or  the  council  of  any  municipal  corpora- 
tion of  the  state  of  Ohio,  shall  have  the  power  to  issue  and 
sell  bonds  in  such  amounts  and  denominations,  for  such  period 
of  time  and  at  such  rate  of  interest,  not  exceeding  six  per 
cent.,  and  in  such  manner  as  is  provided  by  law  for  the  sale  of 


288  the  ohio  municipal  code.  [Code  §  100 

bonds  by  such  township  or  municipal  corporations,  for  any  of 
the  purposes  provided  for  in  this  act,  whenever  such  trustees 
or  council  by  an  affirmative  vote  of  not  less  than  two-thirds  of 
the  members  elected  or  appointed  thereto  shall  by  resolution 
or  ordinance  deem  the  same  necessary. 

1.  For  procuring  the  real  estate  and  right  of  way  for  any 
improvement  authorized  by  this  section,  or  for  purchasing 
real  estate  with  a  building  or  buildings  thereon,  to  be  used 
for  public  purposes. 

2.  For  extending,  enlarging,  improving,  repairing  or  se- 
curing a  more  complete  enjoyment  of  any  building  or  im- 
provement authorized  by  this  section,  and  for  equipping  and 
furnishing  the  same. 

3.  For  sanitary  purposes  and  for  erecting  a  crematory 
or  providing  other  means  for  disposing  of  garbage  and  refuse 
matters. 

4.  For  improving  highways  leading  into  the  township  or 
corporation,  or  for  building  or  improving  a  turnpike,  or  for 
purchasing  one  or  more  turnpike  roads  and  making  the  same 
free. 

5.  For  constructing  wharves  and  landings  on  navigable 
waters. 

6.  For  erecting  infirmaries. 

7.  For  erecting  workhouses,  prisons  and  police  stations. 

8.  For  erecting  houses  of  refuge  and  corrections. 

9.  For  erecting  market  houses  and  providing  market 
places. 

10.  For  erecting  public  halls  and  public  offices. 

11.  For  erecting  or  purchasing  waterworks  and  supplying 
water  to  the  township  or  corporation  and  the  inhabitants 
thereof. 

12.  For  erecting  or  purchasing  gas  works  or  electric  light 
works,  and  for  supplying  light  to  the  township  or  corporation 
and  the  inhabitants  thereof. 

13.  For  providing  grounds  for  cemeteries  or  crematories, 
for  enclosing  and  embellishing  the  same,  and  for  erecting 
vaults. 

14.  For  constructing  sewers,  sewage  disposal  works,  flush- 
ing tunnels,  drains  and  ditches. 

15.  For  establishing  free  public  libraries  and  reading  rooms. 

16.  For  the  establishment  of  free  public  baths. 

17.  For  erecting  monuments  to  commemorate  the  services 
of  soldiers,  sailors  and  marines  of  the  state  and  nation. 

18.  For  improving  any  water  course  or  water  front. 

19.  For  the  payment  of  obligations  arising  from  emergen- 
cies resulting  from  epidemics,  or  floods,  or  other  forces  of  na- 
ture. 

20.  For  purchasing  and  condemning  the  necessary  land 
for  park  and  boulevard  purposes  and  for  improving  the  same 
as  well  as  for  improving  or  completing  the  improvement  of 
any  existing  boulevard,  park,  or  parks. 


Code   §  100]  LONGWORTH  BOND  ACT.  289 

21.  For  erecting  hospitals  and  pest  houses  and  for  rebuild- 
ing, or  improving  existing  hospitals  and  pest  houses. 

22.  For  resurfacing,  repairing,  or  improving  any  existing 
street  or  streets  as  well  as  other  public  highways. 

23.  For  opening,  widening  and  extending  any  street  or  pub- 
lic highway. 

24.  For  purchasing  or  condemning  any  land  necessary  for 
street  or  highway  purposes,  and  for  improving  the  same  or 
paying  any  portion  of  the  cost  of  such  improvement. 

25.  For  constructing  levees  and  embankments  or  paving  or 
improving  the  same,  and  for  improving  any  water  course 
passing  through  said  township  or  municipal  corporation. 

26.  For  constructing  or  repairing  viaducts,  bridges  and 
culverts,  and  for  purchasing  or  condemning  the  necessary  land 
therefor. 

27.  For  erecting  any  building  necessary  for  a  fire  depart- 
ment, purchasing  fire  engines,  fire  boats,  constructing  water 
towers,  and  fire  cisterns,  and  paying  the  cost  of  placing  under- 
ground the  wires  or  other  signal  apparatus  of  any  fire  depart- 
ment. 

[Total  bonded  indebtedness  permitted  to  be  created  by 
township  or  municipality  in  any  one  year.]  The  bonds  herein 
authorized  may  be  issued  for  any  or  all  purposes  enumerated 
herein,  but  the  total  bonded  indebtedness  hereafter  created  in 
any  one  fiscal  year  under  the  authority  of  this  act  by  any 
township  or  municipal  corporation  shall  not  exceed  one  (1) 
per  cent,  of  the  total  value  of  all  property  in  such  township  or 
municipal  corporation,  as  listed  and  assessed  for  taxation,  ex- 
cept as  otherwise  provided  in  this  act.3 

[Exception;  may  exceed  said  amount  after  submission  of 
question  to  vote.]  Whenever  the  trustees  of  any  township  or 
the  council  of  any  municipal  corporation,  shall  by  resolution 
or  ordinance4  passed  by  an  affirmative  vote  of  not  less  than  two- 
thirds  of  all  the  members  elected  or  appointed  thereto,  deem 
it  necessary  in  any  one  fiscal  year  to  issue  bonds  for  all  or  any 
of  the  purposes5  authorized  in  this  act  in  any  amount  greater 
than  one  per  cent,  of  the  total  value  of  all  property  in  such 
township  or  municipal  corporation  as  listed  and  assessed  for 
taxation,  then  and  in  that  event  they  shall  submit  the  question 
of  issuing  any  bonds  in  excess  of  said  one  per  cent,  to  a  vote  of 
the  qualified  electors  of  such  township  or  municipal  corpora- 
tion at  a  general  or  special  election  in  the  manner  hereafter 
provided  in  section  2837,  Revised  Statutes. 

[Amount  of  net  indebtedness  permitted  to  be  incurred  by 
township  or  municipality  at  any  time;  exception.]  Provided, 
however,  that  the  net  indebtedness  incurred  by  any  township 
or  municipal  corporation,  after  the  passage  of  section  2835, 
Revised  Statutes,  as  amended  April  29,  1902,  for  the  purpose 
herein  enumerated,  shall  never  exceed  four  (4)  per  cent,  of 
the  total  value  of  all  property  in  such  township  or  municipal 
corporation,  as  listed  and  assessed  for  taxation,  unless  an  ex- 


290 


THE  OHIO  MUNICIPAL  CODE. 


[Code  §  100 


cess  of  such  amount  is  authorized  by  vote  of  the  qualified 
electors  of  such  township  or  municipal  corporation  in  the  man- 
ner hereafter  provided  in  section  2837,  Revised  Statutes. 

["Net  indebtedness"  defined.]  In  arriving  at  the  net  in- 
debtedness incurred,  allowance  shall  be  made  only  for  the 
amount  held  in  the  sinking  fund  for  the  redemption  of  bonds 
theretofore  issued  under  the  provisions  of  section  2835  as 
amended  April  29,  1902,  and  subsequently,  and  the  net  indebt- 
edness shall  be  held  to  be  the  difference  between  the  par  value 
of  all  such  outstanding  and  unpaid  bonds  and  the  amount  held 
in  the  sinking  fund  for  their  redemption. 

[Fiscal  year  for  purposes  of  this  act.]  For  the  purposes  of 
this  act  the  fiscal  year  shall  hereafter  be  the  calendar  year, 
from  January  1  to  December  31  inclusive,  and  an  indebtedness 
shall  not  be  deemed  to  have  been  created  or  incurred,  where 
the  work  is  to  be  done  by  or  through  the  officers  of  the  town- 
ship or  municipal  corporation,  until  the  bonds  therefor  have 
been  issued  and  sold.  [1906,  April  4,  98  v.  63;  97  v.  291;  95  v. 
318.] 


(1)  Held  constitutional.— This 

act,  amending  old  §§  2835,  2836  and 
2837  R.  S.,  and  known  as  the  "Long- 
worth  Bond  Act,"  was  held  consti- 
tutional in  Guckenberger  v.  Hender- 
son, 66  O.  S.  692. 

Construction    of    old    sections, 

before  amendment,  see  Dunham  v. 
Opes,  3  C.  C.  274  (holding  that  the 
former  sections  outlined  the  exclu- 
sive method  by  which  bonds  could 
be  issued,  where  the  power  was  not 
given  to  council  to  act  of  its  own 
motion,  unless  §  2687  R.  S.  con- 
ferred the  power,  which  was  not  de- 
cided). Hensly  v.  Hamilton,  3  C. 
C.  201  (holding  gas  works  to  be  a 
local  improvement  within  the  mean- 
ing of   former  sections ) . 

(2)  Hamlets. — See  note  "  Status 
of  hamlets "  under  §  1  of  the 
Code. 

(3)  Dividing  cost  of  improve- 
ment.—  Whether  a  municipality 
may  make  a  partial  appropriation 
of  property  for  a  waterworks  sys- 
tem, which  will  not  involve  the  issu- 
ance of  bonds  in  a  sum  greater 
than  one  per  cent,  of  the  tax  dupli- 
cate and  thus  evade  the  submission 
of  the  question  to  popular  vote, 
quere.  Knauss  v.  Columbus,  13  Dec. 
200. 

(4)  Resolution  or  ordinance 
declaring  necessity.  —  Condition 
precedent. —  The  proper  adoption  of 
the  resolution  or  ordinance  declar- 
ing it  necessary  to  issue  and  sell 
the  bonds  of  the  corporation  for  a 


specified  purpose  as  authorized  by 
the  above  section,  and  providing 
therein  for  submission  of  the  ques- 
tion to  popular  vote,  is  essential 
to  the  validity  of  all  subsequent 
proceedings  and  to  the  bond  issue. 
Gas  and  Water  Co.  v.  Elyria,  57 
O.  S.  374. 

Character  of  resolution  or  ordi- 
nance.—  Such  resolution  or  ordi- 
nance is  of  a  general  and  permanent 
nature  and  must  be  read  on  three 
different  days,  unless  the  rule  is 
duly  dispensed  with.  Gas  and 
Water  Co.  v.  Elyria,  57  O.  S.  374. 

Such  resolution  or  ordinance 
must  provide  for  but  one  improve- 
ment and  cannot  combine  two  dis- 
tinct measures  and  if  it  does  so,  it 
will  not  be  effectual  for  either  pur- 
pose,    lb. 

Manner  of  bond  issue,  it  was 
held  under  former  section,  must  be 
determined  by  council  and  this 
power  could  not  be  delegated  to 
mayor.  Gas  and  Water  Co.  v.  Ely- 
ria, 57  O.  S.  374. 

(5)  Several  improvements  un- 
der one  submission. — The  question 
of  increasing  size  of  waterworks 
system  and  erecting  electric  plant 
in  connection  therewith,  could  be 
submitted  as  one  question,  if  both 
were  substantially  one  improve- 
ment.    Ryan  v.  Orbison,  7  C.  C.  30. 

But  the  purchase  of  waterworks 
and  the  erection  of  new  ones,  are 
distinct  measures  and  require  dif- 
ferent proceedings.  Gas  and  Water 
Co.  v.  Elyria,  57  O.  S.  374. 


Code    §    100]  LONGWOETH    BOND    ACT.  291 

FORM  OF  ORDINANCE  TO   ISSUE  BONDS   WITHOUT  SUBMISSION 
TO  POPULAR  VOTE. 

Ordinance   No , 


To  issue  bonds  for  the  purpose  of 

Be  it  ordained  by  the  council  of  the  city  [or  village]  of 

State  of  Ohio,  two-thirds  of  the  members  elected  thereto  concurring: 

Sec.    1.     That    it   is   deemed   necessary   by   the    council   of   the   city    [or 

village]   of ,  to  issue  and  sell  the  bonds  of  said  city 

[or  village]  in  the  sum  of dollars,  for  the  purpose  of 

(here  state  purpose  of  bond  issue) . 

Sec.  2.     That  the  bonds  of  said  city  [or  village]  be  issued  in  the  sum  of 

$ for  the  aforesaid  purpose ;  each  of  said  bonds  to  be  in  the 

denomination  of  $ ,  and  numbered  consecutively  from  one  to 

.........  and  all  made  payable  on  the day  of ,   , 

and  bearing  interest  at  the  rate  of per  cent,  per  annum,  payable 

annually  [or  semi-annually]  [if  coupon  bonds,  evidenced  by  coupons  at- 
tached thereto]  ;  said  bonds  shall  be  dated and  shall  run 

for  a  period  of years  from  said  date;  and  said  bonds 

shall  be  payable  at in  the  city  [or  village]  of 

,   State  of , 

Sec.  3.  Said  bonds  shall  express  upon  their  face  the  purpose  for  which 
they  are  issued  and  that  they  are  issued  in  pursuance  of  this  ordinance. 
They  shall  be  prepared,  issued  and  delivered  under  the  direction  of  the 
finance  committee  of  council  (or  other  committee  if  desired)  and  the  city 
auditor  [  or  village  clerk]  and  shall  be  signed  bv  the  mayor  of  said  city  [or 
village]  and  by  the  city  auditor  [or  village  clerk]  and  sealed  with  the 
corporate  seal  of  said  city  [or  village]  ;  and  the  interest  coupons  attached 
to  said  bonds  shall  be  executed  by  the  city  auditor  [or  village  clerk]  with 
his  signature  thereto,  or  he  shall  have  his  signature  printed  or  lithographed 
thereon ; 

(If  registered  bonds  are  issued  instead  of  coupon  bonds  substitute  the 
following  for  Sec.  3.  "  Sec.  3.  Said  bonds  shall  express  upon  their  face 
the  purpose  for  which  they  are  issued  and  that  they  are  issued  in  pursuance 
of  this  ordinance.  They  shall  be  prepared,  issued  and  delivered  under  the 
direction  of  the  finance  committee  of  the  council  (or  other  committee,  if 
desired)  and  the  city  auditor  [or  village  clerk]  and  shall  be  signed  by 
the  mayor  of  said  city  [or  village]  and  by  the  city  auditor  [or  village  clerk] 
and  sealed  with  the  corporate  seal  of  said  city  [or  village].  Said  bonds 
shall  be  registered  in  the  office  of  the  trustees  of  the  sinking  fund  in  the 
name  of  the  purchaser  and  shall  bear  interest  as  aforesaid.") 

Sec.  4.  Said  bonds  shall  be  first  offered  at  par  and  accrued  interest  to 
the  trustees  of  the  sinking  fund  in  their  official  capacity,  and  if  the  sinking 
fund  trustees  refuse  to  take  any  or  all  said  bonds  at  par  and  interest,  then 
said  bonds  not  so  taken  shall  be  advertised  for  public  sale  and  sold  in  the 
manner  provided  by  law,  but  not  for  less  than  their  par  value  and  accrued 
interest. 

Sec.  5.  The  proceeds  from  the  sale  of  said  bonds,  except  the  premiums 
and  accrued  interest  thereon,  shall  be  placed  in  the  city  [or  village]  treas- 
ury to  the  credit  of  the fund  and  shall  be  disbursed  upon  proper 

vouchers  for  the  purpose  of  (here  state  purpose  of  the  bond  issue)  and  for 
no  other  purpose;   and   the  premiums  and  accrued  interest  received   from 


292  the  ohio  municipal  code.  [Code  §  100 

such  sale  shall  be  transferred  to  the  trustees  of  the  sinking  fund  to  be 
applied  by  them  in  the  manner  provided  by  law. 

See.  6.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed ,   19 


President  of  Council. 
Attest:  ' 


Clerk. 

Note:  Form  of  bond  may  be  adapted  from  that  given  under  §2701 
R.  S.,  re-enacted  in  §  96  of  the  Code,  p.  280 ;  and  form  of  notice  of  sale  of 
bonds  from  that  given  under  §  97  of  the  Code,  p.  285. 

Sec.  2835b  R.  S.  [When  limitation  above  prescribed  not  ap- 
plicable.] Provided  further  that  the  limitations  of  one  per 
cent,  and  four  per  cent,  prescribed  in  section  2835,  Revised 
Statutes,  shall  not  be  construed  as  affecting  bonds  issued  under 
authority  of  said  section  2835  upon  the  approval  of  the  electors 
of  the  corporation,  nor  shall  bonds  which  are  to  be  paid  for  by 
assessments  specially  levied  upon  abutting  property,  nor  bonds 
issued  for  the  purpose  of  constructing,  improving  and  extend- 
ing waterworks  when  the  income  from  such  waterworks  is  suffi- 
cient to  cover  the  cost  of  all  operating  expenses,  interest 
charges  and  to  pass  a  sufficient  amount  to  a  sinking  fund  to 
retire  such  bonds  when  they  become  due,  nor  any  bonds  issued 
prior  to  the  passage  of  section  2835,  Revised  Statutes,  as  amend- 
ed April  20,  1902,  be  deemed  as  subject  to  the  provisions  and 
limitations  of  said  section,  or  be  considered  in  arriving  at  the 
limitations  therein  provided.  [1906,  April  4,  98  v.  66;  97  v. 
520.] 

Sec.  2836  R.  S.  [Tax  shall  be  levied  to  pay  bonds  and  in- 
terest; exception.]  For  the  payment  of  bonds  issued  under 
the  authority  of  section  2835  of  the  Revised  Statutes  or  issued 
after  submission  of  the  question  to  the  people  under  the  provis- 
ions of  section  2837  of  the  Revised  Statutes,  the  trustees  of 
any  township  or  the  council  of  any  municipal  corporation  shall, 
unless  the  interest  on  and  redemption  of  such  bonds  is  other- 
wise provided  for,  levy  a  tax  in  addition  to  all  levies  now  au- 
thorized by  law,  every  year  during  the  period  said  bonds  have 
to  run  sufficient  to  pay  the  interest  on  said  bonds  and  to 
provide  a  sinking  fund  for  their  final  redemption  at  maturity. 
[1906,  April  4,  98  v.  66;  95  v.  321;  93  v.  360;  76  v.  158.] 

Sec.  2837  R.  S.  [Procedure  when  question  of  bond  issue 
must  be  submitted  to  vote.]     Before  any  bonds  in  excess  of  the 


Code   §  100]  LONGWORTH  BOND  ACT.  293 

said  one  per  cent,  in  any  one  year  or  in  excess  of  the  said  four 
per  cent,  in  the  aggregate  are  issued  or  tax  levied,  as  provided 
in  sections  2835  and  2836,  Revised  Statutes,  the  question  of 
issuing  the  same  shall  be  submitted  to  the  voters  of  the  town- 
ship or  municipal  corporation  at  a  general  or  special  election,. 
And  whenever  the  trustees  of  any  township  or  the  council  of 
any  municipal  corporation  shall  by  resolution  or  ordinance 
passed  by  an  affirmative  vote  of  not  less  than  two-thirds  of  all 
the  members  elected  or  appointed  thereto,  declare  it  necessary 
to  issue  and  sell  the  bonds  of  such  township  or  municipal  cor- 
poration as  the  case  may  be,  for  any  or  either  of  the  purposes 
mentioned  in  section  2835  of  the  Revised  Statutes  in  excess  of 
the  amounts  therein  authorized,  and  shall  by  such  resolution 
or  ordinance  fix  a  date  upon  which  the  question  of  issuing  and 
selling  such  bonds  shall  be  submitted  to  the  electors  of  such 
township,  or  municipal  corporation,  and  shall  cause  a  copy  of 
such  resolution  or  ordinance  to  be  certified  to  the  deputy  state 
supervisors  of  the  county  in  which  such  township  or  municipal 
corporation  is  situated,  and  such  deputy  state  supervisors  shall 
thereupon  proceed  to  prepare  the  ballots  and  make  all  other 
necessary  arrangements  for  the  submission  of  such  question  to 
the  electors  of  any  such  township  or  municipal  corporation  at 
the  time  fixed  in  said  resolution.  Such»election  shall  be  held 
at  the  regular  place  or  places  of  voting  in  such  township  or 
municipality,  and  shall  be  conducted,  canvassed  and  certified 
in  the  same  manner,  except  as  otherwise  provided  by  law,  as 
November  elections  in  such  township  or  municipal  corporation 
for  the  election  of  officers  thereof.  Thirty  days'  notice  of  the 
submission  shall  be  given  in  one  or  more  papers  printed  therein 
once  a  week  for  four  consecutive  weeks,  stating  the  amount  of 
bonds  to  be  issued,  the  purpose  for  which  they  are  to  be  issued, 
and  the  time  and  place  of  holding  the  election ;  and  if  no  news- 
paper is  printed  therein  the  notice  shall  be  posted  in  a  con- 
spicuous place  and  published  once  a  week  for  four  consecutive 
weeks  in  some  newspaper  of  general  circulation  in  the  town- 
ship or  municipal  corporation ; 

[Number  of  votes  necessary  to  authorize  issue.]  and  if  two- 
thirds  of  the  voters  voting  at  such  election  upon  the  question 
of  issuing  the  bonds  vote  in  favor  thereof,  then  and  not  other- 
wise the  bonds  for  such  excess  shall  be  issued  and  tax  levied. 
Those  who  vote  in  favor  of  the  proposition  shall  have  written 
or  printed  on  their  ballots  in  quotation,  "For  the  issue  of 
bonds ; ' '  and  those  who  vote  against  the  same  shall  have  writ- 
ten or  printed  on  their  ballots  the  words,  "Against  the  issue 
of  bonds." 


294  the  ohio  municipal  code.  [Code  §  100 

[Total  net  indebtedness  permitted.]  Provided,  however, 
that  no  township  or  municipal  corporation  shall  hereafter  cre- 
ate or  incur  a  net  indebtedness  under  the  authority  of  this  act 
in  excess  of  eight  per  cent,  of  the  total  value  of  all  property  in 
such  township  or  municipal  corporation  as  listed  and  assessed 
for  taxation.  All  bonds  heretofore  issued  in  good  faith  under 
the  authority  of  section  2835,  Revised  Statutes,  as  amended 
April  29,  1902,  and  April  23,  1904,  which  at  the  time  of  issue, 
were  within  the  limitations  herein  provided,  shall  be  valid  obli- 
gations of  the  township,  city,  village,  or  other  municipal  cor- 
poration which  issued  them  and  in  arriving  at  the  limitations 
of  8  per  cent,  herein  provided,  and  of  4  per  cent,  in  section 
2835,  Revised  Statutes;  provided,  all  such  bonds,  except  those 
excluded  by  the  provisions  of  section  28356,  Revised  Statutes, 
shall  be  considered.1  [1906,  April  4,  98  v.  66;  97  v.  190;  95  v. 
321;  95  v.  Ill;  91  v.  106;  91  v.  98;  90  v.  226;  76  v..  158.] 

( 1 )    The  limitation  of  eight  per  the  passage  of  the  act  was  not  to  be 

cent,  as  it  read  even  before  amend-  considered   in   ascertaining  whether 

ment  of  1906,  was  held  to  have  only  the  prescribed  limit  of  indebtedness 

a  prospective  operation,  and  indebt-  had  been  reached.    Tiffin  v.  Griffith, 

edness  created  or  assumed  prior  to  74  O.  S. (51  B.  183). 

FORM  OF  RESOLUTION  DECLARING  NECESSITY  OF  BOND  ISSUE. 

Resolution. 

Declaring  it  necessary  to  issue  bonds  for  the  purpose  of 

Be  it  resolved  by  the  council  of  the  city  [or  village]  of , 

State  of  Ohio,  two-thirds  of  all  the  members  elected  thereto  concurring,  that 
it  is  necessary  to  issue  and  sell  bonds  in  the  fiscal  year  beginning  January 

first,  19 ,  for  the  purpose  of (here  state 

purpose  of  bond  issue)  in  an  amount  greater  than  one  per  cent,  of  the  total 
value  of  all  property  in  said  city  [or  village]  as  listed  and  assessed  for 
taxation,  towit :  in  the  sum  of  $ ,  and  that  the  question  of  issu- 
ing and  selling  the  bonds  of  said  city  [or  village]  in  excess  of  said  one  per 
cent.,  that  is,  in  the  sum  aforesaid,  be  submitted  to  a  vote  of  the  qualified 
electors  of  said  city  [or  village]  at  the  general  election  to  be  held  in  said 
city  [or  village]  on  the day  of  November,  19.  .  . .,  at  the  regu- 
lar place  or  places  of  voting  in  said  city  [or  village]  and  said  election 
shall  be  conducted,  canvassed  and  certified  in  the  same  manner  as  other 
general  municipal  elections. 

(If  the  question  is  to  be  submitted  at  a  special  election  the  form  should 
read:  at  a  special  election  to  be  held  in  said  city  for  that  purpose  on  the 
day  of ,  19....) 

That  the  mayor  be  and  he  is  hereby  directed  to  give  public  notice  of  the 
time  and  place  of  holding  said  election  in  the  manner  provided  by  law. 


Code    §    100]  LO]NvxWOETH    BOND    ACT.  295 

That  the  clerk  be  and  he  is  hereby  directed  to  certify  a  copy  of  this 

resolution  to  the  deputy  state  supervisors  of " .  .  .  .  County,  Ohio. 

Passed ,  19 

Attest .  . ,  President  of  Council. 

Clerk. 


FORM  OF  NOTICE  OF  ELECTION. 

Legal  Notice. 

Notice  is  hereby  given  that  in  pursuance  of  a  resolution  of  the  council 

of  the  city    [or  village]   of ,  passed  on  the day 

of ,  19.  .  .  .,  there  will  be  submitted  to  the  qualified 

electors  of  said  city    [or  village]    at  the  general  election  in  the  city   [or 

village]    of ,   on   the day   of   November,    19..,    [or 

at  a  special  election  to  be  held  in  the  city  [or  village]  or 

on  the day  of ,  etc.]  the  question  of  is- 
suing bonds  of  said  city  [or  village]  in  an  amount  in  excess  of  one  per  cent, 
of  the  total  value  of  all  the  property  in  such  city  [or  village]  as  listed  and 

assessed  for  taxation,  that  is  to  say,  in  the  sum  of  $ for  the 

purpose  of .  .  .  ( here  state  purpose  of  bond  issue ) .      (If 

the  question  is  to  be  submitted  at  a  special  election  the  notice  must  further, 
where  applicable,  contain  a  designation  of  the  voting  place  in  each  ward 
as  fixed  by  the  deputy  state  supervisors  of  election. 

Those  who  vote  in  favor  of  the  proposition  of  issuing  the  bonds  as  afore- 
said shall  have  written  or  printed  on  their  ballots  the  words  "  For  the 
issue  of  bonds  "  and  those  who  vote  against  the  same  shall  have  written  or 
printed  on  their  ballots  the  words  "  Against  the  issue  of  bonds." 

,  19.... 


Mayor. 


FORM    OF    ORDINANCE    TO    ISSUE    BONDS    AFTER    AFFIRMATIVE 

POPULAR  VOTE. 

Ordinance  No 

To  issue  bonds  for  the  purpose  of 

Whereas,  at  a  general  election  held  in  the  city  [or  village]  of , 

on  the day  of  November,   19. .  . .,   [or  at  a  special  election  held 

for  that  purpose  on  the day  of ,  19.  .  .],  the  question  of 

issuing  the  bonds  of  said  city  [or  village]  in  an  amount  in  excess  of 
one  per  cent,  of  the  total  value  of  all  property  in  such  city  [or  village]  as 

listed  or  assessed  for  taxation,  that  is,  in  the  sum  of  $ 

for  the  purpose  of (here  state  purpose  of  bond  issue)    was 

submitted  to  a  vote  of  the  qualified  electors  of  said  city  [or  village]  and, 

Whereas,  two-thirds  of  the  voters  voting  at  such  election  upon  the  question 
of  issuing  said  bonds  voted  in  favor  thereof,  now  therefore, 

Be  it  ordained  by  the  council  of  the  city  [or  village]  of , 

State  of  Ohio. 

Sec.   1.     That  the  bonds  of  the  said  city   [or  village]    be  issued  in  the 

sum  of  $ for  the  purpose  of   ( here  state  purpose 

of  bond  issue)  ;  each  of  said  bonds  to  be  in  the  denomination  of  $ 

numbered  consecutively  from  one  to ,  all  made  payable  on 

the day  of and  bearing  interest  at  the  rate 

of per   cent,  per  annum,   payable  annually   [or  semi-annually]    [if 


296  the  ohio  municipal  code.  [Code  §  100 

coupon  bonds,  evidenced  by  coupons  attached  thereto]   said  bonds  shall  be 

dated and  shall  run  for  a  period  of years ;  and  said 

bonds   shall  be  payable   at in  the  city    [or  village]    of 

,  State  of  

Sec.  2.  Said  bonds  shall  express  upon  their  face  the  purpose  for  which 
they  are  issued  and  that  they  are  issued  in  pursuance  of  this  ordinance. 
They  shall  be  prepared,  issued  and  delivered  under  the  direction  of  the 
Finance  Committee  of  council  (or  other  committee,  if  desired)  and  the 
city  auditor  [or  village  clerk]  and  shall  be  signed  by  the  mayor  of  said 
city  [or  village]  and  by  the  city  auditor  [or  village  clerk]  and  sealed  with 
the  corporate  seal  of  said  city  [or  village]  and  the  interest  coupons  at- 
tached to  said  bonds  shall  be  executed  by  the  city  auditor  [or  village  clerk] 
with  his  signature  thereto,  or  he  shall  have  his  signature  printed  or  litho- 
graphed thereon; 

(If  registered  bonds  are  issued  instead  of  coupon  bonds,  substitute  the 
following  for  Sec.  2.  "  Sec.  2.  Said  bonds  shall  express  upon  their  face 
the  purpose  for  which  they  are  issued  and  that  they  are  issued  in  pursuance 
of  this  ordinance.  They  shall  be  prepared,  issued  and  delivered  under  the 
direction  of  the  Finance  Committee  of  council  (or  other  committee  if  de- 
sired) and  the  city  auditor  [or  village  clerk]  and  shall  be  signed  by  the 
mayor  of  said  city  [or  village]  and  by  the  city  auditor  [or  village  clerk] 
and  sealed  with  the  corporate  seal  of  said  city  [or  village].  Said  bonds 
shall  be  registered  in  the  office  of  the  trustees  of  the  sinking  fund  in  the 
name  of  the  purchaser  and  shall  bear  interest  as  aforesaid.") 

Sec.  3.  Said  bonds  shall  be  first  offered  at  par  and  accrued  interest  to 
the  trustees  of  the  sinking  fund  in  their  official  capacity,  and  if  the  sink- 
ing fund  trustees  refuse  to  take  any  or  all  of  said  bonds  at  par  and  in- 
terest then  said  bonds  not  so  taken  shall  be  advertised  for  public  sale  and 
sold  in  the  manner  provided  by  law,  but  not  for  less  than  their  par  value 
and  accrued  interest. 

Sec.  4.  The  proceeds  from  the  sale  of  said  bonds,  except  the  premiums 
and  accrued  interest  thereon,  shall  be  placed  in  the  city  [or  village]  treas- 
ury to  the  credit  of  the fund  and  shall  be  used  for  the  pur- 
pose of  (here  state  purpose  of  the  bond  issue)  and  for  no  other  purpose; 
and  the  premiums  and  accrued  interest  received  from  such  sale  shall  be 
transferred  to  the  trustees  of  the  sinking  fund,  to  be  applied  by  them  in 
the  manner  provided  by  law. 

Sec.  5.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed ,  19 

> 

President  of  Council. 

Attest, , 

Clerk. 

Note:  Form  of  bond  may  be  adapted  from  that  given  under  §  2701  R.  S., 
reenacted  in  §  96  of  the  Code,  p.  280;  and  form  of  notice  of  sale  of  bonds 
from  that  given  under  §  97  of  the  Code,  p.  285. 


Code  §§  101-103]  sinking  fund.  29? 

Seventh.  Sinking  Fund.1 
Sec.  101.  [Tax  for  creating  a  sinking  fund.]  2  All  municipal 
corporations  having  outstanding  bonds  or  funded  debts  shall, 
through  their  councils,  and  in  addition  to  all  other  taxes  au- 
thorized by  law,  levy  and  collect  annually  a  tax  upon  all  the  real 
and  personal  property  in  the  corporation  sufficient  to  pay  the 
interest  and  provide  a  sinking  fund  for  the  extinguishment  of 
all  bonds  and  funded  debts  and  for  the  payment  of  all  judg- 
ments final,  except  in  condemnation  of  property  cases,  and  the 
taxes  so  raised  shall  be  used  for  no  other  purpose  whatever. 

(1)  Chapter  of  Revised  Stat-  inclusive,  and  95  O.  L.  5,  all  re- 
tries  relating  to   the   sinking   fund  pealed. 

was  formerly  Chap.  3,  Div.  9,  Title  (2)   Old   section   2712   R.   S.   re- 

XII,    §§    2712   to    (2729-11)    R.    S.,  pealed. 

Sec.  102.  [Trustees  of  the  sinking  fund.]  1  In  all  municipal 
corporations  the  sinking  fund  shall  be  managed  and  controlled 
by  a  board  designated  as  the  trustees  of  the  sinking  fund,  which 
in  cities  shall  be  composed  of  four  citizens  thereof,  which  shall 
also  be  the  tax  commission  as  provided  herein,2  not  more  than 
two  of  whom  shall  belong  to  the  same  political  party,  and  who 
shall  be  appointed  by  the  mayor.  In  villages  the  trustees  of  the 
sinking  fund  shall  be  the  mayor,  clerk  and  chairman  of  the  fi- 
nance committee  of  council. 

(1)   Old   section. —  Compare   old  (2)     Tax    commission.      See     § 

§  2715  R.  S.,  repealed.  46  of  the  Code,  supra. 

Sec.  103.  [Compensation  and  bond.]  1  The  trustees  of  the 
sinking  fund  shall  serve  without  compensation  and  shall  give 
such  bond  as  council  may  require;  provided,  that  any  surety 
company  authorized  to  sign  such  bonds  shall  be  sufficient  se- 
curity, and  the  costs  thereof,  together  with  all  other  incidental 
and  necessary  expenses  of  the  trustees  of  the  sinking  fund, 
shall  be  paid  by  said  trustees  out  of  funds  under  their  control. 

(1)   Old   section.— Compare   old  §§  2715  and  2716  R.  S.,  repealed. 


THE    OHIO    MUNICIPAL    CODE.      [Code  §§  104-106 

Sec.  104.  [Organization  of  board.]  x  The  trustees  of  the 
sinking  fund  shall  immediately  after  their  appointment  and 
qualification  elect  one  of  their  number  as  president  and  another 
as  vice-president,  who  shall  in  the  absence  or  disability  of  the 
president  perform  his  duties  and  exercise  his  powers,  and  such 
secretary,  clerks  or  employes  as  council  may  provide  by  an 
ordinance  which  shall  fix  their  duties,  bonds  and  compensation ; 
provided,  that  where  no  clerks  or  secretary  is  authorized,  the 
auditor  of  thq  city  or  clerk  of  the  village  shall  act  as  secretary 
of  the  board.      [1904,  April  27,  97  v.  517.] 

(1)    Old    section. —  Compare    old  §  2717  K.  S.,  repealed. 

Sec.  105.  [Meetings;  record  of  proceedings.]  1  The  trustees 
of  ,the  sinking  fund  shall  make  their  own  rules ;  but  their 
meetings  shall  be  open  to  the  public,  and  all  questions  relatirf 
to  the  purchase  or  sale  of  securities,  payment  of  bonds,  interest 
or  judgments  or  involving  the  payment  or  appropriation  of 
money  shall  be  decided  by  a  yea  and  nay  vote  with  the 
name  of  each  member  voting  recorded  on  the  journal,  and  no 
question  shall  be  decided  unless  approved  by  a  majority  of  the 
whole  board. 

(1)    Old    section. —  Compare    old  §  2718  R.  S.,  repealed. 

Sec.  106.  [Duty  of  trustees  with  respect  to  bonded  indebted- 
ness of  city.]  *  The  auditor  of  the  city  or  clerk  of  the  village 
shall  upon  demand  of  the  board  report  to  it  a  full  and  detailed 
statement  of  the  outstanding  indebtedness  of  the  corporation 
for  bonds  issued,  and  the  board  shall  take  charge  of  and  keep 
a  full  record  of  the  same  and  report  to  council  at  least  once  a 
year  a  full  detailed  statement  of  the  same,  together  with  the 
statement  of  their  investments  and  general  financial  business 
of  the  city  or  village  which  shall  be  published  in  any  annua] 
report  published  by  the  corporation. 

(1)    Old    section. —  Compare    old  §  2719  R.  S.,  repealed. 


Code  §§  1 07-109]  sinking  fund.  299 

Sec.  107.  [Auditor's  or  clerk's  report  to  trustees.]  1  The 
city  auditor  or  village  clerk  shall  upon  demand  of  the  board, 
report  to  it  balances  belonging  to  the  city  or  village,  to  the 
credit  of  the  sinking  fund,  interest  accounts,  or  for  any  bonds 
issued  for  or  by  the  corporation ;  and  all  officers  or  persons  hav- 
ing the  same  shall  immediately  pay  the  same  over  to  the 
trustees  of  the  sinking  fund,  who  shall  deposit  them  in  such 
place  or  places  as  the  majority  of  such  board  shall  select. 

(1)    Old   section. —  Compare    old   §   2720  R.  S.,   repealed. 

Sec.  108.     [Report  of  trustees  to  council;  duty  of  council.]  1 

On  or  before  the  first  Monday  in  May  of  each  year  the  trustees 
of  the  sinking  fund  shall  certify  to  council  the  rate  of  tax 
necessary  to  provide  a  sinking  fund  for  the  future  payment  of 
bonds  issued  by  the  corporation  and  for  the  payment  of  final 
judgments,  except  in  condemnation  of  property  cases,  and  for 
the  amount  necessary  for  the  payment  of  interest  on  all  bonded 
indebtedness,  and  the  rents  due  on  all  perpetual  leaseholds 
of  the  corporation  not  payable  from  a  special  fund,  and  the 
expenses  incident  to  the  management  of  the  sinking  fund,  and 
council  shall  place  the  several  amounts  so  certified  in  the  tax 
ordinance  before  and  in  preference  to  any  other  item  and  for 
the  full  amount  certified,  and  said  taxes  shall  be  in  addition  to 
all  other  taxes  authorized  by  law. 

(1)   Old  sections. —  Compare  old  §§  2721  and  2721a  R.  S.,  repealed. 

Sec.  109.  [How  funds  to  be  invested.]  *  The  trustees  of 
the  sinking  fund  shall  invest  all  moneys  received  by  them  in 
bonds  of  the  United  States,  the  State  of  Ohio,  or  of  any  munici- 
pal corporation,  school,  township  or  county  bonds,  in  said  state, 
hold  in  reserve  only  such  sums  as  may  be  needed  for  effecting 
the  terms  of  this  act,  and  all  interest  received  by  them  shall  be 
reinvested  in  like  manner. 

(1)   Old  section.— Compare   old§  2722  R.  S.,  repealed. 


300  the  ohio  municipal  code.  [Code  §§  110-112 

Sec.  110.  [Payment  of  obligations.]1  The  trustees  of  the 
sinking  fund  shall  have  charge  of  and  provide  for  the  payment 
of  all  honds  issued  by  the  corporation,  the  interest  maturing 
thereon  and  the  payment  of  all  judgments  final  against  the  city 
or  village,  except  in  condemnation  of  property  cases.  They  shall 
receive  from  the  auditor  of  the  city  or  clerk  of  the  village  all 
taxes  assessments  and  money  collected  for  said  purposes  and 
invest  and  disburse  them  in  the  manner  provided  by  law.  For 
the  satisfaction  of  any  obligation  under  their  supervision  the 
trustees  of  the  sinking  fund  may  sell  or  use  any  of  the  securities 
or  money  in  their  possession.     [1904,  April  27,  97  v.  517.] 

(1)    Old   section. —  Compare   old  §  2723  R.  S.,  repealed. 

Sec.  111.  [How  money  to  be  drawn  and  deposited.]  1  Money 
shall  be  drawn  by  check  only,  signed  by  the  president,  and  at 
least  two  members  of  the  board,  and  attested  by  the  secretary  or 
clerk.  All  securities  or  evidences  of  debt  held  by  the  trustees 
for  the  corporation  shall  be  deposited  with  the  treasurer  of  the 
corporation  or  with  a  safety  deposit  company  or  companies 
within  the  corporation,  or  if  none  exists,  then  in  a  place  of 
safety  to  be  indicated  or  furnished  by  council,  and  when  so 
deposited  they  shall  be  drawn  only  upon  the  application  of 
three  members  and  in  the  presence  of  at  least  two  members  of 
the  city  board,  or  upon  the  application  and  in  the  presence  of  at 
least  two  members  of  the  village  board. 

(1)    Old   section. —  Compare    old   §  2724  R.  S.,  repealed. 

Sec.  112.  [Power  of  trustees  to  investigate  transac- 
tions affecting  sinking  fund,  etc.]1  The  trustees  of  the  sink- 
ing fund  shall  have  power  to  investigate  all  transactions  involv- 


Code    §    113]  SINKING    FUND.  <  301 

ing  or  affecting  the  sinking  fund  of  [in]  any  branch  or  depart- 
ment of  the  municipal  government,  and  they  shall  have  such 
other  powers  and  perform  such  other  duties,  not  inconsistent 
with  the  nature  of  the  duties  prescribed  for  them  by  law,  and 
[as]  may  be  conferred  or  required  by  council.  [1904,  April 
27,  97  v.  517.] 

(1)   Old  sections.— Compare  old  §§  2727  and  2728  R.  S.,  repealed. 

Sec.  113.  [Trustees  authorized  to  issue  bonds  for  certain  pur- 
poses.] 1  The  trustees  of  the  sinking  fund  for  the  purpose  of 
refunding  renewing  or  extending  the  bonded  debt  at  a  lower 
rate  of  interest  or  for  buying  the  fee  simple  of  real  estate  held 
by  the  corporation  under  special  leases  wherein  is  secured  to 
the  corporation  the  option  to  buy  the  fee  simple  at  a  fixed  price, 
and  where  the  money  to  buy  can  be  procured  at  a  less  rate  of 
interest  on  the  price  than  is  represented  by  the  stipulated  rents, 
shall  have  power  to  issue  the  coupon  or  registered  bonds  of  the 
corporation  for  such  periods  not  exceeding  fifty  years,  in  such 
denominations,  payable  at  such  place  and  at  such  rate  of  inter- 
est not  exceeding  six  per  cent.,  as  the  trustees  may  determine ; 
provided,  that  the  aggregate  amount  of  refunding,  renewing  or 
extending  bonds  so  issued  shall  not  exceed  that  of  the  bonds 
so  refunded,  renewed  or  extended.2 

(1)  Old  section. —  Compare  old  the  Code  (old  §  2709  R.  S.),  being 
§   2729a  R.  S.,  repealed.  in  pari  materia,  would  govern.    Cin- 

(2)  Character  of  bonds. —  See  cinnati  v.  Guckenberger,  60  0.  S. 
Cincinnati  v.  Anderson,  10  C.  C.  353.  For  full  opinions  in  lower 
265,  where  it  was  held,  under  the  courts,  see  5  N.  P.,  429;  17  C.  C. 
former  §  2729a  R.  S.,  that  such  115.  See  also  Roberts  &  Co.  v.  Taft, 
bonds  could  not  be  made  payable  in  109  Fed.  825;  48  C.  C.  A.  681.  See 
gold.  §  115  of  the  Code. 

Competitive    bidding    required.  Private  contracts  unauthorized. 

—  Bonds    issued    under    the    above  — The  trustees  of  the  sinking  fund 

section  must  be  sold  to  the  highest  were  held  to  have  no  authority  un- 

and    best    bidder     after    advertise-  der  old    §   2729a   R.   S.   to   make  a 

ments.     The  provisions  of   §    97   of  private   contract  for  refunding  the 


302         the  ohio  municipal  code.  [Code  §§  114,  115 

bonded    debt    of    the    municipality.  tract  which  would  result  in  the  add- 

Cincinnati  v.  Guckenberger,  60  0.  S.  ing  of  interest  to  the  principal  of 

353.  bonds  and  refunding  the  amount  so 

Duty  to  provide  for  interest. —  made  up,  their  duty  being  to  take 

J-f iiking  fund  trustees  were  held  to  care    of    the     interest    as     it    ma- 

11  tve  no   authority  to  make  a  con-  tures.     lb. 

Sec.  114.  [Recording  of  bonds.]  All  bonds  henceforth 
issued  by  any  city  shall,  before  they  become  valid  in  the 
hands  of  any  purchaser,  be  recorded  in  the  office  of  the  sinking 
fund  trustees,  and  shall  bear  the  stamp  of  said  board  of  sink- 
ing fund  trustees,  containing  the  words  "  Recorded  in  the  office 
of  the  sinking  fund  trustees,"  signed  by  the  secretary.  The 
record  shall  show  date  of  issue,  for  what  purpose  issued,  rate 
of  interest,  amount  of  issue,  when  due,  principal  and  interest 
where  payable.      [1904,  April  27,  97  v.  517.] 

Sec.  115.  [Signing,  attesting,  etc.]  All  bonds  issued  by  the 
trustees  of  the  sinking  fund  1  shall  be  signed  by  the  mayor  and 
president  of  such  board  of  trustees,  except  that  when  the 
mayor  of  a  village  is  also  the  president  of  such  board  of  trustees 
he  shall  sign  as  such  mayor  and  president  of  the  board ;  attest- 
ed by  the  auditor  or  clerk  of  the  corporation  and  the  secretary  of 
the  board  of  trustees  of  the  sinking  fund  and  have  affixed  the 
seal  of  the  corporation  issuing  them ;  they  shall  be  sold  as  pro- 
vided in  section  97  of  this  act  and  the  trustees  of  the  sinking 
fund  shall  have  power  on  demand  of  the  owner  or  holder  of  any 
coupon  bond,  to  issue  in  lieu  thereof  a  registered  bond  of  the 
same  denomination,  bearing  the  same  rate  of  interest  and  pay- 
able both  interest  and  principal  at  the  same  time,  and  to  pro- 
vide the  method  of  effecting  such  exchange. 

( 1 )    Forms  of  bond  and  notice  of      and  §  97  of  the  Code,  p.  285,  which 
Bale.     See  those  given  under  §  2701       may  be  readily  adapted. 
R.  S.,  re-enacted  in  Code  £  96,  p.  280, 


Code  §116]  #  30tf 

III 

ORGANIZATION  OF  CITIES. 


1.     LEGISLATIVE. 

Sec.  116.  [Council:  number  of  members;  how  elected;  term.]1 
The  legislative  power  of  every  city  shall  be  vested  in,  and  exer- 
cised by,  a  council,  composed  of  not  less  than  seven  members, 
four  of  whom  shall  be  elected  by  wards  and  three  of  whom  shall 
be  elected  by  the  electors  of  the  city  at  large ;  provided,  that  for 
the  first  twenty  thousand  inhabitants  in  any  city,  in  addition 
to  the  original  five  thousand,  there  shall  be  two  additional  mem- 
bers of  council,  elected  by  wards,  and  for  every  fifteen  thousand 
inhabitants  thereafter  there  shall  be  one  additional  member 
similarly  elected.  Provided,  further,  that  whenever  the  total 
number  of  members  of  council  is  fifteen  or  more,  one  member  of 
every  five  shall  be  elected  at  large,  and  the  remainder  from 
wards.2  Members  of  council  shall  serve  for  a  term  of  two 
years  and  until  their  successors  are  elected  and  qualified.3 

(1)  Old  sections. —  Compare  old  of  council;  no  more  and  no  less. 
|§  1655,  1655a,  1658,  1661,  1672,  Where  there  are  20,000  inhabitants 
16726,  1673  R.  S.,  all  repealed.  in   addition    to   the   original    5,000, 

(2)  Interpretation  of  provi-  two  more  are  allowed,  making  nine 
sions. —  In  Zumstein  v.  Mullen,  48  for  a  city  of  25,000,  and  under  40,- 
B.  177,  67  O.  S.  382,  where  was  un-  000  inhabitants.  After  passing  the 
der  consideration  the  number  of  25,000  mark,  it  is  provided  that  for 
members  of  council ,  fixed  for  Cin-  every  15.000  inhabitants,  one  addi- 
cinnati,  having  a  population  of  325,-  tional  member  shall  be  elected.  Take 
902,  this  section  was  construed  as  said  first  25.000  from  the  total  pop- 
follows:  ulation  of  the  city  of  325,902  and 

"      ...     At    least    5,000    in-  there  will  remain  300,902.     This  di- 

habitants  are  required  to  constitute  vided  by  15,000,  gives  twenty  mem- 

a  city,  and  by  the  above  section  a  bers  to  be  elected  by  reason  of  said 

city  of  5,000  and  under  25,000  in-  300.902  inhabitants.     The  first  25/ 

habitants    will  have  seven  members  000  gave  nine  members,  which  added 


304 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §116 


to  the  twenty,  makes  twenty-nine  in 
all  as  the  total  for  the  whole  city. 

"  Now  as  to  the  manner  of  elec- 
tion. The  first  25,000  inhabitants 
gives  nine  members,  six  to  be  elect- 
ed from  wards  and  three  in  the  city 
at  large.  For  every  15,000  after  the 
first  25,000  one  member  is  added, 
to  be  elected  from  a  ward ;  but  when- 
ever the  total  number  of  members 
reaches  fifteen  or  more,  four  out  of 
every  five  are  to  be  elected  from 
wards,  and  one  at  large,  so  that 
only  three  would  be  elected  at  large 
so  long  as  the  number  of  members 
is  under  twenty,  but  at  twenty,  four 
would  be  elected  at  large,  and  at 
twenty-five  members,  five  would  be 
elected  at  large,  and  it  would 
stand  at  five  until  the  num- 
ber of  members  would  reach  thirty, 
but  as  the  total  number  in  Cincin- 
nati is  only  twenty-nine,  only  five 
can  be  elected  at  large,  and  the  re- 
mainder, twentv-four,  from  wards." 


(3)  Holding  until  successor 
qualifies.— See  §  8  R.  S.  in  Part 
II,  providing  that  any  person  hold- 
ing an  office  of  public  trust  shall 
continue  until  his  successor  is  elect- 
ed or  appointed  and  qualifies,  unless 
otherwise  provided  by  constitution 
or  laws. 

Membership  in  council  was  held 
to  be  an  "  office  "  within  the  mean- 
ing of  §  8  R.  S.  State  ex  rel.  v. 
Kearns,  47  O.  S.  566,  568. 

Where  a  statute  provides  that  an 
officer  shall  serve  until  his  succes- 
sor is  elected  and  qualified,  a  fail- 
ure to  elect  a  successor  does  not 
create  a  vacancy  to  be  filled  by  ap- 
pointment under  a  general  author- 
ity to  fill  vacancies,  but  the  incum- 
bent holds  over.  State  ex  rel.  v. 
Wright,  56  O.  S.  540,  556;  and  the 
incumbent  continues  not  as  a  mere 
de  facto  officer,  but  as  the  rightful 
possessor  of  the  office.  State  v. 
Howe,  25  O.  S.  588,  596. 


TABLE  OF  COUNCILMEN  IN  CITIES  UNDER  NEW  CODE. 
(Adopted  in  Zumstein  v.  Mullen,  48  B.  177;  67  O.  S.  382.) 


Pop. 

Total  Council. 

By  Wards. 

At  Large 

5,000 

7 

4 

3 

25,000 

9 

6 

3 

40,000 

10 

7 

3 

55,000 

11 

8 

3 

70,000 

12 

9 

3 

85,000 

13 

10 

3 

100,000 

14 

11 

3 

115,000 

15 

12 

3 

130,000 

16 

13 

3 

145.000 

17 

14 

3 

160,000 

18 

15 

3 

175,000 

19 

16 

3 

190,000  . 

20 

16 

4 

205,000 

21 

17 

4 

220,000 

22 

18 

4 

235,000 

23 

19 

4 

250,000 

24 

20 

4 

265,000 

25 

20 

5 

280.000 

26 

21 

5 

Code  §  117] 

ORGANIZATION 

OF  CITIES 

,      COUNCIL. 

305 

TABLE  OF  COUNCILMEN  IN  CITIES  UNDER  NEW  CODE.- 

—Continued. 

Pop. 

Total 

Council. 

By 

Wards. 

At    Large. 

295,000 

27 

22 

5 

310,000 

28 

23 

5 

325,000 

29 

24 

5 

340,000 

30 

24 

6 

355,000 

31 

25 

6 

370,000 

32 

26 

6 

385,000 

33 

27 

6 

400,000 

34 

28 

6 

Sec.  117.  [Council  to  divide  city  into  wards.]1  The  council 
shall,  after  each  recurring  federal  census,  and  within  three 
months  after  the  issuance  of  the  proclamation  required  in  sec- 
tion 2  of  this  act,  and  whenever  there  is  annexed  thereto  any 
territory  containing,  by  the  last  federal  census,  such  number 
of  inhabitants  as  will  entitle  the  city  to  an  additional  member 
of  the  council,  subdivide  the  city  into  wards,  equal  in  number 
to  the  members  of  the  council  in  such  city  who  are  to  be  elected 
from  wards  therein;  and  all  wards  shall  be  bounded,  as  far 
as  practicable,  by  county  lines,  streets,  alleys,  avenues,  public 
grounds,  canals,  water  courses,  corporation  lines,  center  lines 
of  platted  streets,  or  railroads,  and  be  composed  of  adjacent 
and  compact  territory,  and  as  nearly  equal  in  population  as 
practicable  ;2  and  if  the  council  shall  fail  to  make  such  subdi- 
vision into  wards  within  the  time  herein  required,  then  the 
same  shall,  on  the  application  of  the  president  of  the  council, 
be  made  by  the  board  of  public  service. 

[Election  and  term  of  members  of  council.]  One  member 
of  the  council  shall  be  chosen  from  each  ward  in  each  odd 
numbered  year  for  a  term  of  two  years  commencing  on  the 
first  day  of  January  next  after  his  election.  (See  126.)  [1906, 
April  16,  98  v.  195.] 

(1)  Old  sections, — Old  §§  1628  nexation  of  new  territory,  see  form 
to  1632  R.  S.,  repealed.  given  below.     As  to  construction  of 

(2)  Redisricting  ordinance  af  such  ordinance  under  a  former  law, 
ter  new  Federal  census  or  upon  an-  see  State  v.  Cincinnati,  3  N.  P.  127. 


306                           the  ohio  municipal  code.  [Code  §  117 

Duties    of    councils. — The    old  the    department    of    public    service, 

councils  in  office  prior  to  the  first  health,  university  and  library)   ami 

Monday  in  May,  1903,  were  required  fix    their    compensation    and    bonds 

under  former  §  117  of  the  Code  (1)  (§§126    and    227    of    Code).       (2) 

to    subdivide   the    city    into    wards,  They  were  authorized  to  fix  the  sal- 

(2)  to  determine  the  number  of  di-  aries  and  bonds  of  all  elective  city 

rectors  of  public  service  and  of  pub-  officers  as  well  as  the  salaries  and 

lie  safety,  respectively,  and    (3)    to  bonds    of    the    directors    of    public 

fix  the  salaries  and  bonds  of  all  offi-  safety,  not,  however,  to  take  effect 

cers  elected  at  the  first  election  un-  during  the  first  terms  of  such  offi- 

der  the  Code  and  the  salaries  and  cers   or   directors,  the   salaries  and 

bonds    of    the    directors    of    public  bonds   for   such   first   terms   having 

safety  to  be  first  appointed  there-  already  been  fixed  by  the  old  coun- 

under.    These    duties    having    been  cils    (§§  126  and  117  of  the  Code), 

performed,  the   new   councils   going  (3)  They  were  required  to  establish 

into  office  on   the  first   Monday   in  a    board    of   health    (§    187   of   the 

May,  1903,  had  the  following  duties  Code}. 

to  perform  in  perfecting  the  organ-  The  powers  of  present  councils  in 

ization   of  cities :      ( 1 )     They  were  relation   to   fixing  or  changing  the 

required  to  organize  the  various  de-  salaries   and   bonds   of   officers    and 

partments   of   the   city  government,  the   number   of   directors   of   public 

determine  the  number  of  assistants,  service     and     directors     of     public 

clerks    and    other    subordinate    em-  safety  are  now  found  in  §§  126,  227, 

ployes  in  each  department    (except  138  of  the  Code. 


FORM  OF  ORDINANCE  TO  RE-DISTRICT  CITY  AFTER  NEW  FED- 
ERAL CENSUS  OR  ANNEXATION  OF  TERRITORY. 

Ordinance   No 

To  subdivide  the  city  of into  wards. 

Whereas,  according  to  the  last  federal  census,  as  shown  by  the  proclama- 
tion of  the  secretary  of  state,  the  city  of has  a 

population  of ;  and  whereas  this  council  is 

authorized  and  directed  by  law  to  re-district  said  city  and  sub-divide  the 
same  into  wards,  now  therefore: 

( Or,  if  by  council  after  annexation  of  territory :  "Whereas,  there  has  been 

annexed  to  the  city  of . . . . ,  in  the  manner  provided  by 

law,  territory  bounded  and  described  as  follows  (here  describe  new  territory 
annexed)  ;   and  whereas,  the  territory  so  annexed  contained  according  to 

the  last  federal  census inhabitants ;   and  whereas  by 

the  annexation  of  said  territory  the  city  of is  entitled 

to additional  members  of  council;  and  whereas,  by 

reason  of  said  annexation,  this  council  is  authorized  and  directed  by  law  to 
re-district  said  city  and  sub-divide  the  same  into  wards,  now  therefore:") 

Be  it  ordained  by  the  council  of  the  city  of ,  State  of  Ohio : 

Sec.  1.    That  the  city  of be  and  it  is  hereby  sub- 
divided into wards,  which  are  equal  in  number  to  the 

members  of  council  who  are  hereafter  to  be  elected  from  wards  according  to 

law,  and  said wards  are  hereby  created  and  established  in  this 

city,  and  the  boundaries  thereof  shall  be  such  as  are  hereinafter  set  forth, 
which  boundaries  are  so  fixed  as  that  each  ward  shall  contain  as  nearly  as 
practicable  an  equal  number  of  inhabitants. 

Sec.  2.     That  the  boundaries  of  the  wards  shall  be  as  follows: 
First  Ward.    The  first  ward  shall  contain  all  that  territory  bounded  and 
described  as  follows : 


Code    §  118],  ORGANIZATION  OF  CITIES.      COUNCIL.  307 

Second  Ward.     Etc. 

Sec.  3.  That  all  ordinances  or  parts  of  ordinances  inconsistent  here- 
with are  hereby  repealed,  and  this  ordinance  shall  take  effect  and  be  in 
force  from  and  after  the  earliest  period  allowed  by  law. 

Passed 19 


President  of  Council. 

Attest : 


Clerk. 


FORM  OF  ORDINANCE  CHANGING  THE  NUMBER  OF  DIRECTORS 
OF  PUBLIC  SERVICE  OR  SAFETY. 

Ordinance  No 

To  fix  the  number  of  directors  of  public  service  [or  public  safety]. 

Be  it  ordained  by  the  council  of  the  city  of State  of  Ohio : 

Sec.  1.    That  the  number  of  directors  of  public  service  [or  public  safety] 

heretofore  fixed  and  determined  for  the  city  of is 

hereby  increased  [or  diminished]   to ,and  the  number 

of  said  directors  shall  hereafter  be 

Sec.  2.  That  all  ordinances  or  parts  of  ordinances  inconsistent  herewith 
be  repealed,  and  this  ordinance  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed , 19. . . . 

President  of  council. 
Attest : 

*  Clerk." 

Sec.  118.  [Officers  of  council.]1  The  members  of  council 
shall,  within  ten  days  from  the  commencement  of  their  term, 
elect2  a  president  pro  tern.,  clerk,  who  shall  also  perform  the 
duties  of  city  clerk  3  unless  otherwise  specified  in  this  act,  and 
such  other  employes  of  council  as  may  be  necessary,  and  shall 
fix  their  duties,  bonds  and  compensation.  The  officers  and 
employes  of  council  shall  serve  for  two  years,  but  may  be 
removed  at  any  time  for  cause,  at  a  regular  meeting  by  a 
vote  of  two-thirds  of  the  members  elected  to  council. 

(1)  Old  sections. — Compare  oid  to  each  member  and  by  which  the 
§§  1655a,  1662  and  1676  R.  S.,  re-  majority  can  be  fairly  ascertained, 
pealed.  may  be  adopted,  if  not  forbidden  by 

(2)  Mode  of  election.— Where  law.  State  ex  rel.  v.  Green,  37  O. 
no  mode  of  voting  in  the  organiza-  S.  227.  Thus,  election  may  be  made 
tion   of   council    is    prescribed,    any  °y  motion.    lb. 

mode  which  insures  a  right  to  vote 


308 


THE  OHIO  MUNICIPAL  CODE. 


[Code  §  119 


Refusal  to  vote  by  members  pres- 
ent when  election  is  being  held  am. 
when  their  names  are  called,  can- 
not defeat  the  election.    lb. 

A  plurality  of  votes  cast  was  held 
sufficient  to  elect.  State  ex  rel.  v. 
Anderson,  45  0.  S.  196;  State  v. 
Miller.  62  O.  S.  436. 

When  the  choice  has  been  made  by 
such  vote  it  is  not  necessary  to  com- 
plete the  election,  that  the  presiding 
officer  announce  the  vote.  State  v. 
Miller,  62  O.  S.  436. 
•  After  the  choice  has  thus  been 
made  no  member  of  council  can 
change  the  result  by  changing  h: 
vote.    lb. 

(3)  Clerk,  chosen  as  here,  holds 
office  by  election  and  not  by  appoint- 
ment. State  v.  Squire,  39  O.  S.  197 ; 
State  ex  rel.  v.  Witt,  72  O.  S.  584. 

Duties   as   to   Journal. — Under 


former  §  1755  R.  S.  (repealed),  pro- 
viding the  duties  of  clerk,  it  was 
held  that  the  clerk  has  no  power 
to  correct  the  journal  of  council, 
after  the  council  has  passed  upon 
the  record  of  its  proceedings  and 
mandamus  will  not  lie  to  compel 
the  clerk  to  do  so.  McClain  v.  Mc- 
Kisson,  15  C.  C.  517. 

Auditor  as  city  clerk. — §  134 
of  the  Code  by  reference  to  §  1756 
et  seq.  R.  S.,  confers  upon  the  audi- 
tor certain  duties  formerly  de- 
volved upon  the  city  clerk ;  §  224 
of  the  Code  confers  upon  the  audi- 
tor the  duties  formerly  devolved 
upon  the  city  clerk  by  "§§  1737  to 
1743  R.  8.,  inclusive. 

Appointments. — As  to  power  of 
city  clerk,  under  former  statutes,  in 
the  matter  of  appointments,  see 
Lillard  v.  Ampt,  4  N.  P.  272. 


Sec.  119.  [Council  shall  be  judge  of  election  and  qualifications 
of  its  members;  quorum;  special  meetings.]1  Council  shall  be 
the  judge  of  the  election  and  qualification  of  its  members ; 2  a 
majority  of  all  the  members  elected  shall  be  a  quorum  to  do 
business,3  but  a  less  number  may  adjourn  from  day  to  day  and 
compel  attendance  of  absent  members  in  such  manner  and  under 
such  penalties  as  shall  be  prescribed  by  ordinance,  and  council 
shall  provide  rules  for  the  manner  of  calling  special  meetings.4 
[1904.  April  21,  97  v.  136.] 


( 1 )  Old  sections. — Compare  old 
§§  1662  and  1679  R.  8.,  repealed. 

(2)  Conclusiveness  of  council's 
determination.  —  Council's  deter- 
mination as  to  election  of  members 
is  conclusive  and  not  reviewable  by 
the  courts.  Stearns  v.  Wyoming,  53 
0.  S.  352;  and  quo  warranto  will 
not  lie  to  oust  a  member,  after  coun- 
cil's finding.  State  ex  rel.  v.  Berry, 
47  O.  S.  232.  But  the  exclusive 
right  of  council  to  judge  of  the  elec- 
tion of  its  members  does  not  extend 
to  a  case  where  a  councilman  is  as- 


suming to  act  as  councilman  from  a 
ward  which  has  no  legal  existence. 
State  ex  rel.  v.  O'Brien,  47  O.  S. 
464;  so  where  councilman  is  ineligi- 
ble because  not  a  citizen  of  the 
United  States.  State  ex  rel.  v.  Col- 
lister,  27  C.  C.  529;  6  C.  C.  (N.  S.) 
33;  and  quo  warranto  will  lie  in 
such  cases.    lb. 

Nor  does  the  exclusive  right  of 
council  extend  to  a  case  where  the 
question  is  not  simply  which  of  two 
persons  has  been  properly  selected 


Code    §  120]  ORGANIZATION  OF  CITIES.      COUNCIL. 


309 


to  fill  a  conceded  vacancy,  but 
whether  a  vacancy  does  in  law  ex- 
ist, which  is  to  be  filled  by  election 
or  appointment.  State  ex  rel.  v. 
Darby,  12  C.  C.  235  (aff'd,  52  O.  S. 
611). 

(3)  Quorum. — Where  a  member 
of  council  has  removed  from  his 
ward  and  thus,  under  the  statutes 
nnd  a  municipal  ordinance,  left  a 
vacancy,  the  number  of  members  of 
council  may  be  regarded  as  reduced 
thereby,  and  a  quorum  will  consist 
of  a  majority  of  all  the  members 
elected  and  remaining  qualified. 
State  ex  rel.  v.  Orr,  61  0.  S.  384. 


(4)   Special   meetings. — In  the 

absence  of  statutory  or  other  provi- 
sions relating  to  special  meetings  or 
notice  thereof,  action  taken  at  a  spe- 
cial meeting  where  a  quorum  is  pres- 
ent and  where  the  proper  number  of 
all  members  elected  concur,  is  not 
invalid,  because  some  members  were 
not  present  and  were  not  notified  of 
the  meeting.  State  ex  rel.  v.  Bow- 
ers, 26  C.  C.  326;  4  C.  C.  (N.  S. 
345  (aff'd,  70  O.  S.  423)  ;  see  also 
Cupp  v.  Commissioners,  19  O.  S.  173, 
180;  State v.Wilkesville,  20O.S.288. 
See.  as  to  manner  of  calling  spe- 
cial meetings,  §  123. 


Sec.  120.     [Qualifications  of  members  of  council;  vacancies.]1 

Councilmen  at  large  shall  have  resided  in  their  .respective  cities, 
and  councilmen  from  wards  shall  have  resided  in  their  respec- 
tive wards,  for  at  least  one  year  next  preceding  their  election. 
Every  member  of  council  shall  he  an  elector  of  the  city,  shall 
not  hold  any  other  public  office  or  employment,2  except  that  of 
notary  public  or  member  of  the  state  militia,  and  shall  not 
be  interested  in  any  contract  with  the  city.3  Any  member  who 
shall  cease  to  possess  any  of  the  qualifications  herein  required, 
or  shall  remove  from  his  ward,  if  elected  from  his  ward,  or 
from  the  city,  if  elected  from  the  city  at  large,  shall  forthwith 
forfeit  his  office.4  Whenever  the  office  of  councilman  becomes 
vacant  the  same  shall  be  filled  by  election  by  council  for  the 
unexpired  term,5  and  in  case  council  fail  within  thirty  days  to 
fill  such  vacancy,  the  mayor  shall  fill  the  same  by  appointment. 


(1)  Old  sections. —  Compare  old 
§  1680  R.  S.,  repealed  (members 
must  be  residents)  ;  §  1681  K.  S.,  re- 
pealed (must  not  hold  other  mu- 
nicipal office)  ;  §  1715  R.  S.,  re- 
pealed ( removal  of  officer  from  cor- 
poration, a  resignation)  ;  §  1655a 
R.  S.,  repealed  (  member  of  board  of 
legislation  not  to  be  interested  in 
contract)  ;  §  1717  R.  S.,  repealed 
(councilmen  ineligible  to  any  other 
office)  ;  §  1724  R.  S.,  repealed  (fill- 
ing vacancies ) . 


(2)  Holding  other  office. — Con- 
struction.—  The  words  in  former 
§  1717  R.  S.,  repealed,  "  no  member 
of  council  shall  be  eligible  to  any- 
other  office,  etc.,"  were  construed  to 
mean  any  other  municipal  office  and 
not  to  prevent  a  councilman  from 
holding  an  office  not  municipal. 
State  ex  rel.  v.  J^inney,  20  C.  C. 
325.  See  further.  State  ex  rel.  v. 
Brown,  60  O.  S.  499. 

So,  a  member  of  council  was  held 
eligible    to    election    as    member    of 


310 


THE  OHIO  MUNICIPAL  CODE. 


[Code  §  120 


school  board  of  a  special  school  dis- 
trict. State  ex  rel.  v.  Kinney,  20 
C.  C.  325.  But  see  contra,  State  ex 
rel.  v.  Keeler,  19  C.  C.  149,  and 
State  ex  rel.  v.  McMillan,  15  C.  C. 
163. 

Councilman  was  held  eligible  to 
election  as  county  commissioner. 
State  ex  rel.  v.  Brown.  60  O.  S.  499. 

A  workhouse  director  was  held  in- 
eligible to  council.  Commissioners 
v.  Cambridge,  7  C.  C.  72. 

Councilman  ineligible  to  appoint- 
ment as  member  of  city  decennial 
board  of  equalization.  State  ex 
rel.  v.  Kearns,  47  0.  S.  566. 

Councilman  held  ineligible  to  ap- 
pointment as  member  of  board  of 
health.  State  ex  rel.  v.  Craig,  69  O. 
S.  236. 

Effect  of  holding  other  office.— 
The  appointment  of  member  of  coun- 
cil to  an  office  he  is  ineligible  to 
fill  does  not  work  an  abandonment 
of  his  office  as  councilman.  The  ap- 
pointment to  the  second  office  is 
simply  void.  State  ex  rel.  v. 
Kearns,  47  O.  S.  566;  State  v.  New- 
ark, 6  N.  P.  523;  State  ex  rel.  v. 
Craig,  69  O.  S.  236,  244.  So  the 
election  to  council  of  one  already 
holding  an  office  which  would  make 
him  ineligible  to  be  a  councilman 
would  not  work  an  abandonment  of 
the  first  office,  but  the  election  to 
council  would  be  void.  Commission- 
ers v.  Cambridge,  7  C.  C.  72. 

Whether  appointments  made  by 
officers  illegally  holding  their  offices 
are  void,  que^c.  State  ex  rel.  v. 
Craig,  69  0.  S    236,  244. 

(3)  Interested  in  contract. — 
Compare  provisions  in  §  45  of  the 
Code,  and  see  note  thereunder,  p.  177. 

(4)  Change  of  bdundary—  Ef- 
fect of  change  of  ward  boundaries, 
see  State  v.  Choate,  11  O.  511; 
Scovill  v.  Cleveland,  1  O.  S.  126. 

Effect  of  removal. — Where  mem- 
ber has  removed  from  the  ward  the 
office  is  vacant  and  the  number  of 
members  of  council  is  reduced  ac- 
cordingly. State  ex  rel.  v.  Orr,  61 
O.  S.  384.  In  such  case,  a  majority 
of  members*  elected  to  council,  will 
consist  of  a  majority  of  those  re- 
maining qualified.     lb. 

(5)  Filling  vacancies. — Term  of 


appointee. —  Under  former  statutes, 
where  one  section  provided  that  an 
appointee  to  fill  a  vacancy  in  coun- 
cil should  be  appointed  "  for  the 
unexpired  term "  and  another  sec- 
tion provided  that  all  persons  ap- 
pointed to  fill  vacancies  in  munici- 
pal offices  should  serve  "  till  the  next 
annual  municipal  election,"  it  was 
held  that  the  former,  being  specially 
applicable  to  council,  would  govern 
as  to  appointments  in  that  body, 
and  such  appointee  would  hold  for 
the  unexpired  term.  State  ex  rel. 
v.  Darby,  12  C.  C.  235  (affirmed, 
52  O.  S.  611). 

An  officer  appointed  to  fill  the  un- 
expired term  would  hold  until  his 
successor  is  elected  and  qualified. 
See  State  ex  rel.  v.  Darby,  supra, 
holding  that  §  8  R.  S.  providing 
that  all  officers  shall  serve  till  suc- 
cessors are  chosen  and  qualify  would 
apply  to  a  councilman  chosen  to  fill 
an  unexpired  term. 

A  misapprehension  as  to  the  true 
tenure  of  the  appointee  on  the  part 
of  the  appointing  power  or  on  the 
part  of  the  appointee  cannot  abridge 
or  extend  the  term  fixed  by  law  for 
his  continuance  in  office.  State  ex 
rel.  v.  Darby,  supra;  State  ex.  rel. 
v.  Slough,  12  C.  C.  105,  111. 

See  generally  as  to  term  of  ap- 
pointee to  fill  vacancy,  notes  under 
§  228  of  the  Code. 

For  discussion  of  question  of  ap 
plicability  of  §  11  JR.  S.  containing 
general  provisions  as  to  term  of 
appointees  to  fill  vacancies,  where 
there  are  special  statutes  for  the 
particular  office,  see  State  ex  rel. 
v.  McGregor,  44  O.  S.  628;  State 
v.  Barbee,  45  O.  S.  347.      , 

When  vacancy  exists.— Where 
a  member  of  council  is  ousted  by 
quo  warranto  proceedings,  on  the 
ground  that  the  ward  he  claims  to 
represent  has  no  legal  existence,  no 


Code  §§121,122]  organization  of  cities,     council.  311 

vacancy    exists.     State    ex    rel.    v.  elude  the  power  to  determine  wheth- 

Kearns,  47  O.  S.  566.  er    a    vacancy   does,    in    law,    exist. 

The    power    of    council    to    judge  ,  State    ex    rel.    v.    Darby,    12    C.    C. 

of  election  of  members,  does  not  in-  235  (affirmed^  52  O.  S.  611). 

Sec.  121.  [Rules,  journal,  expulsion  of  members.]1  Council 
shall  determine  its  own  rules  and  keep  a  journal  of  its  proceed^ 
ings.2  It  may  punish  or  expel  any  member  for  disorderly  con- 
duct, or  violation  of  its  rules,  and  declare  his  seat  vacant 
for  absence  without  valid  excuse,  where  such  absence  has  con- 
tinued for  two  months;  but  no  expulsion  shall  take  place 
without  the  concurrence  of  two-thirds  of  all  the  members 
elected,  and  until  the  delinquent  member  shall  have  been  no- 
tified of  the  charge  or  charges  against  him,  and  shall  have  had 
an  opportunity  to  be  heard.3 

( 1 )  Old  sections. —  Compare  old  ( 3 )  Removal  from  office.— For 
§§    1679   and    1684   R.   S.,   repealed.  provisions  as  to  removal  of  officers 

(2)  Power  of  council  over  by  Probate  Court,  see  §§  1732-1736 
journal. —  In  the  absence  of  fraud  R.  S.,  inclusive,  in  Part  II;  and  see 
or  bad  faith,  the  council  has  the  Dorgan  v.  Columbus,  12  Dec.  121; 
right  to  determine  when  its  jour-  State  ex  rel.  v.  Ganson,  58  O.  S.  313. 
nal  truly  sets  forth  its  proceedings  As  to  what  is  misconduct  in 
and  its  action  in  correcting  the  jour-  office,  see  State  ex  rel.  Sutton,  4  B. 
nal  is  final  and  conclusive,  and  not  608;  State  ex  rel.  v.  Roll,  7  W.  L. 
subject  to  review  by  the  courts.  Mc-  J.  121. 

Clain  v.  McKisson,  15  C.  C.  517.  Character  of  charges  and  finding, 

As  to  attacking  record  of  a  board  see  State  v.  Sullivan,  58  O.  S.  504. 

collaterally,    see  generally,  Lima  v.  As    to    removal    of    officers    upon 

McBride,  34  O.  S.  338,  351  and  cases  charges  preferred  by  the  mayor,  see 

cited;    State  v.    Gas   Co.,    18   O.    S.  §  225  of  the  Code  and  notes. 
262. 

Sec.  122.     [Ordinances  and  resolutions;  how  adopted.]1       The 

action  of  council  shall  be  by  ordinance  or  resolution,2  and  on  the 
passage  of  every  ordinance  or  resolution  the  vote  shall  be  taken 
by  "  yeas  "  and  "  nays,"  and  entered  upon  the  journal ;  3  pro- 
vided, however,  that  this  shall  not  apply  to  the  ordering  of  an 
election,  or  direction  by  council  to  any  board  or  officer  to  fur- 
nish council  with  information  as  to  the  affairs  of  any  depart- 


312  the  ohio  municipal  code.  [Code  §  122 

ment  or  office.  No*  ordinance  or  resolution  granting  a  franchise,4 
or  creating  a  right,  or  involving  the  expenditure  of  money,  or 
the  levying  of  any  tax,  or  for  the  purchase,  lease,  sale,  or  trans- 
fer of  property,5  shall  be  passed,  unless  the  same  shall  have  been 
read  on  three  different  days,  and  with  respect  to  any  such  ordi- 
nance or  resolution,  there  shall  be  no  authority  to  dispense  with 
this  rule,  except  by  a  three-fourths  vote  of  all  members  elected 
thereto.6  No  ordinance  shall  be  passed  by  council  without  the 
concurrence  of  a  majority  of  all  members  elected  thereto.7 


(1)  Old  section.— See  old  § 
1693  R.  S.,  repealed,  and  compare 
old  §   1655a  R.  S.,  repealed. 

(2)  Cannot    act     separately. — 

Corporate  acts  cannot  be  performed 
by  individual  members  of  a  board 
acting  separately.  State  ex  rel.  v. 
Liberty  Twp.,  22  O.  S.  144;  Mc- 
Cortle  v.  Bates,  29  O.  S.  419. 

Character  of  ordinances. — Ordi- 
nances are  binding  on  strangers 
coming  into  the  municipality.  Mar- 
ietta v.  Fearing,  4  O.  427. 

An  ordinance  making  a  contract 
gives  parties  to  it  vested  rights 
which  cannot  be  impaired  by  a  re- 
peal of  the  ordinance.  Lima  Gas 
Co.  v.  Lima,  4  C.  C.  22. 

To  impose  liability  on  the  munic- 
ipality because  of  its  ordinance  the 
statute  as  to  passage,  etc.,  must  be 
followed.  Wellston  v.  Morgan,  65 
O.  S.  219. 

Oral  evidence  that  ordinance  was 
passed,  was  held  admissible  to  prove 
it,  if  the  records  did  not  show  its 
passage.  Drott  v.  Riverside,  4  C. 
C.  312. 

Limitations  on  power  of  coun= 
cil. —  Council  has  only  the  powers 
granted,  and  no  others;  its  pro- 
ceedings must  be  within  the  powers 
conferred  and  in  substantial  con- 
formity  to  the   statutes   regulating 


them.  Gas  and  Water  Co.  v.  Elyria, 
57  O.  S.  374. 

See  further,  notes  under  §  7  of  the 
Code,  p.  43. 

Tower  granted  to  council,  other 
than  mere  ministerial  power,  cannot 
be  delegated.  Hengst  v.  Cincinnati, 
7  N.  P.  1;  Ampt  v.  Cincinnati,  3 
N.  P.  223. 

Ordinances  do  not  determine 
civil  rights  between  individuals. 
Municipal  ordinances  declaring  cer- 
tain acts  to  be  nuisances,  or  permit- 
ting nuisance  to  exist,  do  not  cre- 
ate or  protect  from,  civil  liability 
between  individuals.  Chambers  v. 
Tns.  Co.,  1  Disney,  327,  336;  Van- 
dyke v.  Cincinnati,  1  Disney,  532; 
Veigel  v.  Lunkenheimer,  10  B.  293; 
Clark  v.  Fry,  8  O.  S.  358.  Ordi- 
nances regulating  speed  of  steam  or 
street  railway  cars  in  the  streets 
do  not  determine  civil  liability 
between  individuals,  but  may  go 
to  jury  on  question  of  negligence. 
Meek  v.  Pennsylvania  Ry.  Co.,  38 
O.  S.  632;  Ry.  Co.  v.  Herrick,  49 
O.  S.  25,  32;  Becker  v.  St.  Ry.  Co., 
1  N.  P.  359.  But  violation  of 
a  speed  ordinance  is  not  negli- 
gence per  se.  Meek  v.  Pennsylvania 
Railway  Company,  38  O.  S.  632 ; 
Bell  v.  Pistorius,  18  C.  C.  73.     See 


Code    §  122]  ORGANIZATION  OF  CITIES.      COUNCIL. 


313 


also  Hoppe  v.  Parmalee,  20  C.  C. 
303;  L.  S.  &  M.  S.  R.  R.  Co.  v.  Eh- 
lert,  19  C.  C.  177;  Ulrich  v.  To- 
ledo Consol.  St.  Ry.  Co.,  10  C.  C. 
635;  C.  Ii.  &  D.  Ry.  Co.  v.  Murphy, 
17  C.  C.  223;  Watson  v.  Erie  R.  R., 
8  N.  P.  18;  Ry.  Co.  v.  Trainer,  18 
C.  C.  716;  East  Cleveland  R.  R.  v. 
Rosecrans,  24  B.  220;  Hart  v.  Dev- 
ereux,  41  O.  S.  565. 

Distinction  between  ordinance 
and  resolution. —  An  act  required 
to  he  done  by  ordinance,  is  suffi- 
ciently done  by  legislation  amount- 
ing to  an  ordinance,  though  called 
a  resolution.  Kerlin  Bros.  v.  To- 
ledo, 20  C.  C.  603.  So  an  ordinance 
may  be  valid  as  a  resolution,  where 
resolution  is  required.     lb. 

Action  of  council,  though  in  the 
form  of  an  ordinance  may  have  the 
effect  of  a  resolution,  without  the 
signature  of  the  presiding  officer. 
Blanchard  v.  Bissell,  11  O.  S.  96, 
101. 

When  the  action  of  council  could 
have  been  taken  by  a  motion  or  or- 
der, the  mere  fact  that  its  action 
has  taken  the  form  of  a  resolution 
does  not  require  all  the  formalities 
incident  to  a  resolution  to  make  it 
valid.  Kerlin  Bros.  v.  Toledo,  20  C 
C.  603. 

When  required. —  Waiver  of  per 
forma  nee  of  a  contract  was  held 
under  former  laws,  not  to  require 
an  ordinance  or  resolution.  Hub 
bard  v.  Norton,  28  O.  S.  116.  Ap 
pointment  of  committee  to  effect  a 
compromise  of  a  suit  need  not  be 
by  resolution  or  ordinance.  Com- 
missioners v.  Cambridge,  7  C.  C.  72. 
Where  action  of  council  extends 
over  a  long  period  and  consists  of  a 
number  of  steps,  the  intent  may  be 
gathered  from  the  whole  proceed- 
ings, and  it  is  not  absolutely  essen- 
tial that  each  step  be  formally 
taken.     lb. 


Construction. —  Ordinances  are  to 
be  construed  so  as  to  carry  out  the 
intention.  Cleveland  v.  Lenze,  27 
O.  S.  383,  390.  The  same  rules 
that  govern  the  construction  of  stat- 
utes are  to  be  applied.  Lowden  v. 
Cincinnati,  2  Disney,  203,  207. 

Resolution  directing  lot  owners  to 
fill  lots,  will  be  construed  to  require 
filling  in  such  way  as  will  prevent 
recurrence  of  the  nuisance.  Bliss 
v.  Kraus,  16  O.  S.  54. 

Practical  construction  by  con- 
duct of  parties. —  An  ambiguous 
grant  is  not  necessarily  to  be  con- 
strued most  strongly  against  the  one 
claiming  the  franchise,  and  con- 
struction by  conduct,  as  by  later  or- 
dinances, may  apply.  R.  R.  Co.  v. 
Cincinnati,  16  B.  3G7.  Where  the 
terms  of  an  ordinance  granting  a 
franchise  are  unambiguous,  there  is 
no  room  for  construction  by  conduct 
of  the  parties;  nor  does  the  rule  of 
construction  by  practice  apply  when 
the  acts  relied  upon  are  not  those 
of  the  officers  making  the  contract, 
but  of  subsequent  or  other  officers  or 
agents  of  the  municipality.  Cincin- 
nati v.  Cin.  St.  Ry.  Co.,  6  N.  P. 
140,  8  N.  P.  80;  Cincinnati  v.  Gas 
Light  and  Coke  Co.,  53  0.  S.  278. 

Validity  —  In  general.  —  Pre- 
sumption is  in  favor  of  the  validity 
of  ordinances.  Moerder  v.  Fremont, 
19  C.  C.  394.  Fraud  and  malice 
are  not  to  be  imputed  to  council, 
but  the  immunity  from  impeach- 
ment for  fraudulent  motives  dees 
not  attach  to  all  acts  of  council 
which  may  assume  the  form  of  an 
ordinance.  State  v.  Gas  Co.,  18  O. 
S.  262,  301. 

The  provision  of  the  Constitution 
vesting  legislative  power  in  the  leg- 
islature is  not  violated  by  granting 
to  councils  of  municipalities  the 
power  to  pass  ordinances.  Markle 
v.  Akron,  14  O.  586. 


314 


THE    OHIO     MUNICIPAL    CODE. 


[Code  §  122 


Stating  penalty  in  different  sec- 
tion from  that  describing  offenses, 
does  not  invalidate.  Brown  v.  To- 
ledo, 7  N.  P.  435. 

Misnomer  of  the  municipality  is 
not  fatal  if  the  meaning  is  clear. 
McCrea  v.  Washington,  18  B.  66. 

A  court  may  correct  error  in 
punctuation.  Chittenden  v.  Colum- 
bus, 26  C.  C.  531;  5  C.  C.  (N.  S.) 
84. 

An  ordinance  is  not  void  for  un- 
certainty because  the  boundaries  of 
streets  of  the  district  mentioned  in 
it  do  not  meet  and  that  it  gives  one 
of  the  boundaries  as  a  river  without 
mentioning  what  river.  Chittenden 
v.  Columbus,  26  C.  C.  531. 

An  ordinance  is  not  invalid  be- 
cause it  incorporates  by  reference  a 
previous  ordinance  not  properly 
passed.  Such  new  ordinance  is  not 
amendatory  of  first  ordinance.  Co- 
lumbus v.  Federal  Gas  &  Fuel  Co., 
14  Dec.   261    (aff'd   72  O.   S.   632). 

Reconsideration  of  ordinances  and 
resolutions,  see  Adkins  v.  Toledo,  27 
C.  C.  417;  6  C.  C.   (N.  S.)   433. 

Ordinance  partly  void. — An  or- 
dinance may  be  partly  void,  and  the 
rest  valid,  if  the  rest  is  separable. 
Piqua  v.  Zimmerlin,  35  O.  S.  507 
•Weaver  v.  Mt.  Vernon,  7  N.  P.  374 
Steuer  v.  McConnell,  8  N.  P.  205 
Chittenden   v.    Columbus,   26   C.    C. 
531;  5  C.  C.  (N.  S.)  84;  Sterling  v. 
Bowling  Green,  26  C.  C.  581;  5  C.  < 
(N.  S.)  217. 

But  if  the  valid  part  depends  on 
and  is  practically  inseparable  from 
the  void  part,  the  whole  will  be 
void.  Cincinnati  St.  Ry.  v.  Smith, 
29  0.  S.  291 ;  Hengst  v.  Cincinnati, 
7  N.  P.  1. 

Ordinance  granting  franchise  for 
longer    than    legal    period    may    be 


valid  for  legal  time.  Sommers  v. 
Cincinnati,  8  Rec.  612. 

Ordinance  indefinite. — An  or- 
dinance forbidding  "dense"  smoke  is 
void.  Cin.  v.  Neff,  29  B.  364.  But 
an  ordinance  merely  requiring  lot 
owners  to  "fill  lots"  is  not  void  for 
uncertainty,  because  it  does  not  pre- 
scribe the  method  of  filling.  Bliss 
v.  Kraus,   16  0.  S.  54. 

An  ordinance  is  not  void  because 
hard  to  comply  with,  if  compliance 
is  possible.  Cincinnati  v.  Miller, 
29  B.  364. 

Inconsistent  with  constitution 
or  statute. — Ordinances  repugnant 
to  the  policy  and  spirit  of  the  Con- 
stitution or  general  statutes  are 
void.  Canton  v.  Nist,  9  O.  S.  439; 
Cincinnati  v.  Rice,  15  O.  225; 
Thompson  v.  Mt.  Vernon,  11  O.  S. 
688. 

Statute  on  same  subject. — An 
ordinance  is  not  invalid  because 
there  is  a  statute  covering  the  same 
subject.  State  v.  Ulm,  7  N.  P.  659. 
But  the  ordinance  must  contain  the 
exceptions  in  the  statute.  Akerman 
v.  Lima,  7  N.  P.  92 ;  Canton  v.  Nist, 
9  0.  S.  439.  But  where  direct  stat- 
utory authority  for  ordinance  in 
question,  and  exceptions  in  other 
statutes,  see  Edis  v.  Butler,  8  N.  P. 
183  (aff'd  68  O.  S.  645).  See  also 
Wellsville  v.  O'Connor,  24  C.  C.  689 ; 
I.  C.  C.    (N.  S.)   253. 

Judicial  review. — In  the  absence 
of  bad  faith  or  fraud,  the  discre- 
tion of  council  in  passing  ordinance 
will  not  be  interfered  with  by  the 
courts.  Iron  R.  R.  v.  Ironton,  19  O. 
S.  299,  304;  Sims  v.  Street  R.  R. 
Co.,  37  O.  S.  556;  R.  R.  Co.  v. 
Dayton,  23  0.  S.  510. 

But  if  council  has  acted  in  bad 
faith  and  this 'is  clearly  averred,  the 


Code  §122]  ORGANIZATION   OF    CITIES.       COUNCIL, 


315 


court  may  inquire  into  the  motives. 
State  v.  Cincinnati  Gas,  etc.,  Co., 
18  O.  S.  262;  State  ex  rel.  v.  Gas 
Co.,  37  O.  S.  45. 

And  when  the  action,  of  council 
depends  for  its  validity  on  a  con- 
dition precedent  imposed  by  statute, 
its  decision  that  such  condition  has 
been  observed  is  not  conclusive 
against  direct  attack.  Roberts  v. 
Easton,  19  O.  S.  78,  86. 

But  vhen  council  has  acted,  the 
presumption  is,  in  the  absence  of 
evidence  to  the  contrary,  that  it  has 
acted  lawfully,  and  all  prerequisites 
to  its  action  were  complied  with. 
Dalrvmple  v.  State,  26  C.  C.  562; 
5  C."C.  (N.  S.)  185;  Reynolds  v. 
Schweinefus,  27  O.  S.  311;  see  also 
Coombs  v.  Lane,  4  0.  S.  112;  Ward 
v.  Barrows,  2  O.  S.  241 ;  but  see 
In  re  Huntsville  Local  Option  Elec- 
tion, 25  C.  C.  535. 

(3)  Yea  and  nay  vote. — Sev- 
eral ordinances  cannot  be  passed  on 
one  call  for  votes.  Sullivan  v. 
Pausch,  5  C.  C.  196;  Campbell  v. 
Cincinnati,  49  O.  S.  463. 

Appointment  of  committee  to  ef- 
fect a  settlement  of  litigation  need 
not  be  made  by  yea  and  nay  vote. 
Commissioners  v.  Cambridge,  7  C. 
C.  72. 

Whether  action  in  the  organiza- 
tion of  council  requires  a  yea  and 
nay  vote,  quere.  See  State  ex  rel. 
v.  Green,  37  O.  S.  227,  230. 

Where  the  journal  shows  that  a 
certain  resolution  was  adopted  by  a 
certain  number  of  votes  and  this 
number  corresponds  with  the  num 
ber  of  those  present,  it  will  be  pre 
sumed  that  all  present  voted  yes 
and  such  vote  and  record  is  suffi 
cient.     Blair  v.  Cary,  24  C.  C.  560 

Passage   how   proved. — If  rec 

ord  does  not  show  passage  of  ordi 
nance,  oral  evidence  may  be  intro 
duced.  Drott  v.  Riverside,  4  C.  C 
312. 

(4)  Ordinance  "granting  a 
franchise." — For  consideration  of 
the  meaning  of  this  phrase,  see 
State  ex  rel.  v.  Henderson,  38  O.  S. 
647;  Morrow  County  v.  Mt.  Gilead, 
8  N.  P.  669. 


A  preliminary  ordinance  desig- 
nating a  route  for  a  proposed  street 
railway  and  providing  for  adver- 
tisement for  bids  was  held  not  to 
be  an  ordinance  granting  a  fran- 
chise, lb.;  see  also  Aydelott  v.  Cin- 
cinnati, 11  C.  C.  11,  17. 

Ordinance  "creating  a  right." — 
For  full  discussion,  see  State  v. 
Barr,  5  N.  P.  435.  See  also  In  re 
Euclid  Ave.  Assessment,  6  N.  P.  160. 

Ordinance  "involving  expen- 
diture."— It  is  not  every  ordinance 
that  may  result  in  the  expenditure 
of  money,  that  is  intended  to  be  in- 
cluded, but  only  such  as  directly 
involve  such  expenditure.  State  ex 
rel.  v.  Henderson,  38  O.  S.  644. 

So  a  preliminary  ordinance  pro- 
viding for  bids  for  street  railway 
route  was  held  not  an  ordinance 
"involving  expenditure  of  money." 
76. 

Ordinance  increasing  the  number 
of  police  officers  and  fixing  their 
salaries,  held  to  be  one  involving 
expenditure  of  money.  State  v. 
Barr,  5  N.  P.  435. 

(5)  Sale  or  lease  of  property. 

—See  §§23  to  27  of  the  Code  and 
notes  thereunder,  pp.  103,  104,  109. 

(6)  Three  readings. — For  mat- 
ter relating  to  the  requirement  of 
three  readings,  see  notes  to  §  1694 
R.  S.  p.  318. 

(7)  Majority. — When  legally 
elected  members  are  less  than  total 
number  of  which  council  might  con- 
sist, whether  a  majority  of  such 
members  is  a  majority  of  council, 
quere.  Commr's  v.  Cambridge,  7  C. 
C.  72. 

When  there  is  a  vacancy  in  coun- 
cil (as  where  a  member  removes 
from  his  ward  and  is  therefore 
deemed  to  have  resigned  his  office ) , 
a  quorum  will  consist  of  all  the 
members  elected  and  remaining 
qualified.  State  ex  rel.  v.  Orr,  61 
O.  S.  384. 

There  need  not  be  a  majority  of 
members  elected  to  appoint  commit- 
tee to  effect  compromise  of  suit. 
Commr's  v.  Cambridge,  7  C.  C.  72. 


316  the   ohio   municipal   code.  [Code  §  123 

Sec.  123.  [Powers  of  council.]1  The  powers  of  council  shall 
be  legislative  only,  and  it  shall  perform  no  administrative  duties 
whatever  and  it  shall  neither  appoint  nor  confirm  any  officer 
or  employe  in  the  city  government  except  those  of  its  own 
body,  except  as  may  he  otherwise  provided  in  this  act.2  All 
contracts  requiring  the  authority  of  council  for  their  execution 
shall  he  entered  into  and  conducted  to  performance  by  the  board 
or  officers  having  charge  of  the  matters  to  which  they  relate, 
and  after  authority  to  make  such  contract  has  been  given  and 
the  necessary  appropriation  made,  council  shall  take  no  further 
action  thereon.3 

[Regular  meetings;  meetings  open  to  public;  special  meet- 
ings.] The  council  shall  not  be  required  to  hold  more  than  one 
regular  meeting  in  each  week;  and  the  meetings  may  be  held  at 
such  time  and  place  as  may  be  prescribed  by  ordinance  and 
shall,  at  all  times,  be  open  to  the  public,  and  the  mayor,  or 
any  three  members  may  call  special  meetings  upon  at  least 
twelve  hours  notice  to  each  member,  served  personally,  or  left 
at  his  usual  place  of  residence.     [1906,  April  4,  98  v.  88.] 

(1)  Old  section. —  Compare  old  government  should  be  distinct  and 
§  1655a  R.  S.,  repealed.  independent   of  one   another."     Lil- 

(2)  Purpose     of    restriction. —      lard  v.  Ampt,  4  N.  P.  305. 

Under    former    statutes,    containing  Construction. —  As    to    question 

the  prohibition  that  council  should  under     former     statutes,     of     what 

exercise  no  appointing  power,  it  was  would  be  considered  an  exercise  of 

said  that  the  statutory  prohibition  appointing  power,  within  the  mean- 

"  was,  doubtless,  intended,  as   it  is  ing  of  such  a  restriction,  see  Lillard 

certainly  well  calculated,  to  relieve  v.  Ampt,  4  N.  P.  305  and  Bellows 

the  municipal  legislature  from  the  v.  Cincinnati,  11  O.  S.  544. 
distracting    and     corrupting    influ-  (3)    Proper  officers    must    exe- 

ences     almost     necessarily     issuing  cute    municipal    contracts    and    the 

from      the      dispensation      of     offi-  power  to  make  public  contracts  can- 

cial      and      pecuniary      patronage;  not  be    delegated   by   one   board    or 

and  places  the  municipal  legislature,  officer   to    another.     Knauss   v.    Co 

in  respect  to  the  appointing  power,  lumbus,    13  Dec.  200. 

in  a   position  substantially   similar  m,            ,.                                     *«.,«■ 

J..    f  .       -...».■'•■-,          i  *  Street    improvements.  —  After 

to  that  in  which  the  General  Assem-  councii  has  made  appropriation  for 

bly   of   the   State   is  placed  by   the  street    improvement    it    is    without 

Constitution    of    the    State."     Bel-  further    authority    in    the    matter. 

,                 ~.     .        ..     n    r,     o     kaa  The  letting  of  the  contract,  the  su- 

lows   v    Cincinnati,    11    O.   S     544  pervision  and  control  of  the  work, 

547.     Such  a  restriction  is  intended  are  with  the  Board  of  Pubiic  gerv- 

to  "  emphasize  the  purpose  that  the  iCe.      State   ex  rel.  v.   Roebuck,    15 

respective  executive,  legislative  and  Dec.   400. 
administrative  functions  of  the  city 


Code  §124]         ORGANIZATION    OF    CITIES.    COUNCIL.  317 

Sec.  124.  [Provisions  of  Eevised  Statutes  which  govern  ordi- 
nances; publication  of  ordinances,  resolutions,  reports,  statements, 
etc.]  In  passing,  recording,  publishing  and  authenticating 
ordinances,  council  shall  be  governed  by  the  provisions  of  sec- 
tions 1694,  1695,1  1696,  1697,  1698  and  1699  of  the  Eevised 
Statutes  of  Ohio,  and  for  all  purposes  such  sections  shall  be 
and  remain  in  full  force  and  effect ;  and  in  addition  thereto  all 
ordinances  and  resolutions  requiring  publication  shall  be  pub- 
lished in  two  newspapers  of  opposite  politics,2  published  and 
of  general  circulation  in  such  municipality,  if  such  there  be, 
and  shall  be  published  in  a  newspaper  printed  in  the  German 
language  if  there  be  in  such  municipality  such  a  paper  having 
a  bona  fide  paid  circulation  within  said  municipality  of  not 
less  than  one  thousand  copies.  Proof  of  such  circulation  shall 
be  made  by  the  affidavit  of  the  proprietor  or  editor  of  such 
paper,  which  shall  be  filed  with  the  city  clerk  of  such  muni- 
cipality. Except  as  otherwise  provided  in  this  act,  in  all  mu- 
nicipal corporations  the  statements,  ordinances,  resolutions,  or- 
ders, proclamations,  notices  and  reports  required  by  this  act,3 
or  the  ordinances  of  any  municipality  to  be  published,  shall  be 
published  in  two  newspapers  of  opposite  politics  of  general 
circulation  therein,  if  there  be  such  in  the  municipality,  and 
for  the  following  times:  The  statement  of  receipts  and  dis- 
bursements required  shall  be  published  once,  the  ordinances  and 
resolutions  once  a  week  for  two  consecutive  weeks,  proclama- 
tions of  elections  once  a  week  for  two  consecutive  weeks,  no- 
tices of  contracts  4  and  of  sale  of  bonds  5  once  a  week  for  four 
consecutive  weeks;6  all  other  matters  shall  be  published  once. 

(1)  See  note  (2)  under  §  1695  not  satisfy  the  requirement.  Ohio 
R.  S.,  p.   321.  State   Journal  v.   Brown,   19   C.   C. 

/0v    n  c  ..  ..         325;    Columbus   v.    Barr,    27    C.    C. 

(2)  Papers  of   opposite  poli=       264    fl  c    c    (N    S)   15j 

tics. — Under    such    a    provision    as  v           ' 
this,  it  has  been  held  that  an  inde-  English     newspapers. — In    the 
pendent     paper,     though     generally  absence  of  requirements  to  the  con- 
supporting   a    political    party,    does  trary,     publication     in    newspapers 


318 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  124 


means  English  newspapers.  Cincin- 
nati v.  Bickett,  26  O.  S.  49. 

( 3 )  Interpretation  of  provision. 

—  This  provision  should  not  be 
construed  to  make  it  mandatory  on 
municipal  authorities  to  publish 
statements,  orders,  etc.,  not  other- 
wise required  to  be  published. 
Opinion  of  attorney-general  on  file 
in  his  office,  dated  Dec.  3,  1902. 

( 4 )  Notices  of  contracts.—  § 
143  of  the  Code  requires  advertise- 
ment for  bids  within  the  department 
of  public  service  for  "  not  less  than 
two  nor  more  than  four  consecutive 
weeks  in  a  newspaper  of  general  cir- 
culation," etc.  A  compliance  with 
the  requirements  of  §  124  will  in- 
clude compliance  with  §  143. 

(5)  Sale  of  bonds.— §  97  of  the 
Code  requires  advertisement  for  sale 
of  bonds  for  thirty  days  in  at  least 
two  newspapers  of  general  circula- 
tion, etc.  An  advertisement  for 
thirty  days  and  in  two  newspapers 
of  opposite  politics  and  of  general 
circulation  in  the  municipality 
would  comply  with  the  requirements 
of  §§  97  and  124. 

(6)  Length  of  publication. — 
As  to  meaning  of  "  once  a  week  for 
two    consecutive   weeks,"   see   Early 

Sec.  1694  R.  S.  [Must  be  read  three  times,  unless,  etc. ;  subject 
and  amendment  of  by-laws,  etc.]  By-laws,  resolutions  and  ordi- 
nances of  a  general  or  permanent  nature,  shall  be  fully  and 
distinctly  read  on  three  different  days,  unless  three-fourths  of 
the  members  elected  dispense  with  the  rule;1  and  the  vote  on 
such  suspension  shall  be  taken  by  yeas  and  nays,  separately  on 
each  by-law,  resolution  or  ordinance,  and  entered  on  the  jour- 
nal. ISTo  by-law  or  ordinance  shall  contain  more  than  one  sub- 
ject,2 which  shall  be  clearly  expressed  in  its  title,  and  no  by-law 
or  ordinance,  or  section  thereof,  shall  be  revived  or  amended, 
unless  the  new  by-law  or  ordinance  contain  the  entire  by-law  or 
ordinance,  or  section  revived  or  amended;  and  the  by-law  or 
ordinance,  section  or  sections  so  amended  shall  be  repealed ; 3 
and  every  such  by-law,  resolution  and  ordinance  shall  be 
adopted  or  passed  by  a  separate  vote  of  the  council  and  the 
yeas  and  nays  shall  be  entered  upon  the  journal.  [90  v.  136 ; 
87  v.  36 ;  66  v.  166,  §§  98,  99 ;  (S.  &  C.  1521).] 


v.  Doe,  16  How.    (U.  S.)    610;  Cin- 
cinati  v.  Fenner,  8  N.  P.  342. 

Where  the  statute  provides  for 
the  number  of  publications,  publi- 
cations in  excess  of  the  limit  fixed 
are  unauthorized,  and  payment  for 
the  same  is  illegal.  Printing  Co.  v. 
State,  68  O.  S.  362;  contra,  Wassem 
v.  Cincinnati,  2  C.  S.  C.  R.  84.  But 
a  claim  for  such  excessive  publi- 
cations having  been  allowed  and 
payment  made,  money  cannot  be  re- 
covered back  in  absence  of  fraud  or 
mistake  of  fact.  Printing  Co.  v. 
State,  68  0.  S.  362. 

But  excessive  publication  does 
not  invalidate  the  ordinance.  lb.; 
Cincinnati  v.  Davis,  58  0.  S.  225, 
237. 

The  publication  is  legal  although 
the  newspaper  is  printed  only  on 
Sunday.  Hastings  v.  Columbus,  42 
O.  S.  585. 

Where  publication  is  required  to 
be  made  in  "  some  newspaper "  a 
discretion  would  seem  to  be  given 
and  publication  might  be  made  in 
more  than  one  paper.  Cincinnati  v. 
Davis,  58  O.  S.  225,  237.  See  also 
Wassem  v.  Cincinnati,  2  C.  S.  C.  R. 
84, 


(1)   Requirement  mandatory. — 

The  requirement  that  certain  or- 
dinances shall  have  three  readings, 
unless  dispensed  with  by  three- 
fourths  vote  is  mandatory.  Camp- 
bell  v.    Cincinnati,    49    O.    S.    463; 


Weaver  v.  Mt.  Vernon,  7  N.  P.  374; 
Bloom  v.  Xenia,  32  O.  S.  461. 

A  vote  on  the  "passage  of  an  or- 
dinance not  read  on  three  different 
days  or  the  rule  dispensed  with  as 
required  by  law,  when  the  ordinance 


Code  §124]         ORGANIZATION    OF    CITIES.    COUNCIL. 


319 


is  one  of  a  general  or  permanent  na- 
ture, is  simply  a  nullity.  Smith  v. 
Railroad  Co.,  8  N.  P.  1. 

So  a  vote  against  an  ordinance  be- 
fore the  three  readings  had  been 
completed  or  properly  dispensed 
with,  is  a  nullity  and  does  not  pre- 
vent passage  after  three  readings. 
Smith  v.  Columbus,  etc.,  Ry  Co.,  8 
N.  P.   1. 

What  is  ordinance  of  a  general 
or  permanent  nature. —  Ordinance 
to  condemn  property  for  street  pur- 
poses or  to  improve  a  street  was 
held  to  be  an  ordinance  of  a  general 
or  permanent  nature  requiring  three 
readings.  Campbell  v.  Cincinnati, 
49  O.  S.  463. 

So  was  a  resolution  to  issue  bonds 
to  procure  water  works  and  submit 
the  question  to  popular  vote.  Gas 
and  Water  Co.  v.  Elyria,  57  O.  S. 
374. 

So  was  a  resolution  requiring  a 
sidewalk  in  front  of  a  single  piece  of 
property.  Thatcher  v.  Toledo,  19 
C.  C.  311;  Cincinnati  v.  Johnson, 
18  C.  C.  611;  McGuire  v.  Ea^c  Cleve- 
land, 1  C.  C.  (N.  S.)  435,  438;  25 
C.  C.  497. 

As  to  resolution  declaring  neces- 
sity of  street  improvement,  see 
Campbell  v.  Cincinnati,  49  O.  S. 
463;  Thatcher  v.  Toledo,  19  C.  C. 
311,  315;  Upington  v.  Oviatt,  24  0. 
S.  232. 

A  resolution  awarding  a  contract 
for  the  improvement  was  held  not 
of  a  general  or  permanent  nature. 
Cincinnati  v.  Bickett,  26  0.  S.  49. 
Nor  authorizing  a  committee  to 
effect  a  settlement  of  litigation. 
Commissioners  v.  Cambridge,  7  C. 
C.  72. 

Nor  an  ordinance  for  lighting 
streets  and  assessing  the  costs. 
Federer  v.  Dayton,  1  Dayton,  142. 

Nor  a  preliminary  resolution 
amounting  to  a  mere  order  or  di- 
rection to  the  clerk  to  advertise  for 
bids  for  sale  of  part  of  a  natural 
gas  plant.  Kerlin  Bros.  v.  Toledo, 
20  C.  C.  603. 
Page   319 


A  resolution  to  be  one  of  a  gen- 
eral or  permanent  nature  must  be 
a  necessary  resolution,  that  is,  it 
must  be  not  only  a  necessary  step 
toward  the  ultimate  object  but  it 
must  be  a  step  which  cannot  be 
otherwise  taken.  Kerlin  Bros.  v. 
Toledo,  20  C.  C.  603. 

When  readings  may  be  had. — 

An  ordinance  twice  read  may  go 
on  the  third  reading  after  an  elec- 
tion which  brings  new  members  into 
council.  Smith  v.  Columbus,  etc., 
Railway,  8  N.  P.  1. 

But  a  second  reading  will  not  be 
valid  where  it  was  at  a  special  meet- 
ing for  which  notice  had  not  been 
properly  served.  Shaw  v.  Jones,  4 
N.  P.  372. 

Suspension  of  rules.  —  More 
than  one  ordinance  cannot  be  passed 
under  a  single  suspension  of  rules. 
Bloom  v.  Xenia,  32  O.  S.  461. 
Campbell  v.  Cincinnati,  49  O.  S. 
463;  Sullivan  v.  Pausch,  5  C.  C. 
196. 

But  the  rule  need  not  be  suspend- 
ed before  each  reading.  A  single 
suspension  of  the  rules  before  first 
reading  is  sufficient.  Purcell  v. 
Riverside,  1  C.  C.  12. 

A  suspension  of  the  rules  allows 
passage  on  one  day  and  one  read- 
ing. Shroder  v.  Overmann,  5  N.  P. 
392. 

Suspension  of  rules  may  be  had 
at  an  adjourned  meeting  and  the  or- 
dinance put  on  its  passage  when 
suspension  of  rules  was  not  had  at 
the  regular  meeting.  Madden  v. 
Smeltz,  2  C.  C.  168. 

Amendments  made  during  the 
passage  of  an  ordinance  which  do 
not  materially  change  its  provisions 
are  not  within  the  rule  requiring 
three  readings.  Weaver  v.  Mt. 
Vernon,  7  N.  P.  374;  Mohn  v.  Col- 
lins, 32  B.  77;  Chillicothe  v.  Gas 
&  Fuel  Co.,  8  N.  P.  88. 


320 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    124 


(2)   More  than  one   subject. — 

Provision  directory.  Pirn  v.  Nich- 
olson, 6  O.  S.  176;  State  v.  Coving- 
ton, 29  O.  S.  102.  See  also  Circle- 
ville  L.  &  P.  Co.  v.  Buckeye  Gas  Co., 
24  C.  C.  684,  685. 

If  one  of  two  subjects  is  separable 
the  whole  ordinance  will  not  be  in- 
valid. McCrea  v.  Washington,  18 
B.  66. 

Provision  is  not  violated  by  an 
ordinance  defining  fifteen  offenses 
against  the  municipality  but  all 
relating  to  the  one  subject  of  the 
punishment  of  offenses  against  the 
municipality.  Wellsville  v.  O'Con- 
nor, 24  C.  0.  689;  1  C.  C.  (N.  S.) 
253 

Different  subjects. —  Resolution 
to  increase  capacity  of  water  works 
and  to  construct  electric  light  plant 
in  connection  therewith,  submitting 
the  question  to  popular  vote,  was 
held  not  to  contain  two  subjects. 
Ryan  v.  Orbinson,  7  C.  C.  30. 

An  ordinance  granting  a  franchise 
to  use  the  streets  for  electric  light 
and  power  purposes  and  also  mak- 
ing a  contract  for  lighting  the 
streets  of  the  city,  contains  more 
than  one  subject.  Morrow  Co.,  etc., 
v.  Mt.  Gilead,  8  N.  P.  669. 

So  does  a  resolution  for  issuing 
bonds  "  for  purchasing  or  construct- 
ing "  gas  wells.  Hensly  v.  Hamil- 
ton, 3  C.  C  201. 


So  does  a  resolution  providing  for 
the  purchase  of  water  works  and 
also  the  erection  of  new  ones.  Gas 
and  Water  Co.  v.  Elyria,  57  O.  S. 
374. 

( 3 )   Repeals    by    implication. — 

A  similar  provision  In  the  Consti- 
tution that  "  the  section  so  amended 
shall  be  repealed "  was  held  direc- 
tory and  not  to  abrogate  the  rule  as 
to  repeals  by  implication.  Lehman 
v  McBride,  15  O.  S.  573. 

A  resolution  declaring  the  neces- 
sity of  constructing  water  works 
will  be  repealed  by  implication  by 
resolution  declaring  the  necessity 
for  purchase  of  water  works  already 
constructed.  Johnson  v.  Elyria,  6 
N.  P.  372. 

An  ordinance  intended  to  repeal 
a  prior  one  but  referring  to  it  mere- 
ly by  its  caption  will  repeal  the  en- 
tire prior  ordinance,  although  the 
caption  is  not  the  same  as  the  lan- 
guage used  in  the  body  of  the  ordi- 
nance. Cincinnati  Street  Ry.  Co.  v. 
Lewis,  23  C.  C.  127;  3  C.  C.  (N.  S.) 
115. 

An  ordinance  which  council  has 
power  to  pass  may  be  passed  con- 
trary to  the  provisions  of  a  previ- 
ous ordinance,  thus  ignoring  the  pre- 
vious ordinance  and  repealing  it  by 
implication.  Aydelott  v.  Cincin- 
nati, 11  C.  C.  11. 


Sec.  1695  K.  S.  [Recording  and  publishing  by-laws,  ordinances, 
etc.;  publication  in  book  form  sufficient]  By-laws,  resolutions 
and  ordinances  shall  be  authenticated  by  the  signature  of  the 
presiding  officer  and  clerk  of  the  council.1  Ordinances  of  a 
general  nature,  or  providing  for  improvements  shall  be  pub- 
lished in  some  newspaper  of  general  circulation  in  the  corpora- 
tion; if  a  daily,  twice  and  if  a  weekly  once,  before  going  into 
operation.2  No  ordinance  shall  take  effect  until  the  expiration 
of  ten  days  after  the  first  publication  of  such  notice.3  And 
as  soon  as  any  by-law,  resolution  or  ordinance  is  passed  and 
signed,  it  shall  be  recorded  by  the  clerk  in  a  book  to  be  fur- 
nished by  the  council  for  the  purpose,4  provided  that  whenever 
ordinances  shall  be  revised,  codified,  re-arranged  and  pub- 
lished in  book  form  and  certified  as  correct  by  the  city  or  vil- 
lage clerk  and  the  mayor  thereof,  such  publication  in  book 
form  shall  be  taken  and  held  to  be  in  lieu  of  publishing  the 


Code  §124]         ORGANIZATION    OF    CITIES.    COUNCIL. 


321 


same  in  a  newspaper  or  newspapers  as  required  by  law,  and 
shall  be  a  sufficient  publication  to  all  intents  and  purposes,  and 
the  ordinance  or  several  ordinances  so  published  in  book  form, 
under  appropriate  titles,  chapters  and  sections,  shall  be  held 
the  same  in  law  as  though  they  had  been  published  in  a  news- 
paper  or  newspapers,  provided  that  any  new  ordinance  so  pub- 
lished in  book  form,  which  has  never  been  published  accord- 
ing to  law,  and  which  contains  entitrely  new  matter  shall  be 
published  as  heretofore  required  by  law.5  [1883,  February 
22:  80  v.  26;  67  v.  68,  §  100;  (S.  &  S.  797;  S.  &  C.  1525).] 


(1)  Signature       of       presiding 

officer  was  held  not  necessary  to 
the  validity  of  an  ordinance.  To- 
ledo, etc.,  Railway  v.  Toledo,  etc., 
Railway,  6  C.  C.  362  (affirmed  on 
other  grounds,  50  0.  S.  603), 
Blanchard  v.    Bissell,    11    0.    S.    90. 

(2)  Length  of  publication. — 
Notwithstanding  this  provision,  the 
better  practice  would  be  to  publish 
ordinances  of  a  general  nature  or 
providing  for  improvements  once  a 
week  for  two  consecutive  weeks  and 
in  the  newspapers  required  by  §  124 
of  the  Code,  since  this  would  in- 
clude the  requirements  of  §  1695 
R.  S. 

Publication  in  general. —  Not 
invalid  because  made  in  a  newspaper 
published  only  on  Sunday.  Hast- 
ings v.  Columbus,  42  O.  S.  585. 

Publication  is  not  necessary  of 
the  action  of  council  not  required  to 
be  done  by  resolution  or  ordinance. 
Kerlin  Bros.  v.  Toledo,  20  C.  C.  603. 

Publication  for  a  longer  time  than 
required   by   statute  will   not   be   a 


misapplication  of  public  funds. 
Wasem  v.  Cincinnati,  2  C.  S.  C.  R. 
84.  Nor  does  excessive  publication 
invalidate  the  ordinance.  Cincin- 
nati v.  Davis,  58  O.  S.  225,  237. 

(3)  When  ordinances  take  ef- 
fect.— An  action  authorized  by  the 
ordinance  cannot  be  taken  on  tne 
tenth  day,  but  only  after  the  tenth 
day.     Fath  v.  Clifton,  7  N.  P.  534. 

If  the  ordinance  requires  a  notice 
for  a  certain  length  of  time  that 
length  of  time  must  expire  in  ad- 
dition to  the  ten  days  before  action 
can  be  taken.  Hensly  v.  Hamilton, 
3  C.  C.  201. 

Council  may  provide,  subject  to 
the  statutory  provision,  when  an 
ordinance  shall  take  effect,  whether 
it  be  an  ordinance  of  a  general  na- 
ture or  not.  Hensly  v.  Hamilton, 
3  C.  C.  201. 

(4)  Record  in  separate  book 
is  not  essential  to  validity  of  ordi- 
nance. This  provision  is  directory 
only.     Upington    v.    Oviatt,    24    (). 

S    232 

/5)    See  Sec.  124a,  page  324. 

Sec.  1696  R.  S.  [Statement  as  to  publication.]  Immediately 
after  the  expiration  of  the  period  of  such  publication,  the  clerk 
shall  enter  on  the  record  of  ordinances,  in  a  blank  to  be  left 
for  such  purpose,  under  the  recorded  ordinance,  a  certificate 
stating  in  what  newspaper  and  of  what  dates  such  publication 
was  made,  and  sign  his  name  thereto  officially,  and  such  cer- 
tificate shall  be  prima  facie  evidence  that  legal  publication  of 
such  ordinance  has  been  made.1      [66  v.  166,  §  101.1 


322  the  ohio  municipal  code.  [Code  §124 

( 1 )    Prima      facie      evidence. —      those '  denying  publication.     O'Brien 
Clerk's  certificate  is  sufficient  proof       v.  Cleveland,  1  Clev.  100. 
of  publication  to  put  the  burden  on 

FORM    OF    CERTIFICATE    OF    PUBLICATION. 

I,   ,  clerk  of  the  city  [or  village]  of - , 

State  of  Ohio,  do  hereby  certify  that  the  foregoing  ordinance  was  duly  pub- 
lished   in and ,    two    newspapers 

of  opposite  politics,  published  and  of  general  circulation  in  said  city  [or 

village]  and  in ,  a  newspaper  printed  in  the  German 

language  and  having  a  bona  fide  paid  circulation  within  said  municipality 
of  not  less  than  one  thousand  copies,  as  shown  by  the  affidavit  of  the 
proprietor  or  editor  of  said  German  newspaper,  filed  with  me.  Said  pub- 
lications were  on  the  following  dates:  (here  insert  dates  of  publication  in 
each   newspaper. ) 

19 


Olerk  of  the  city  [or  village  of 

Note. —  By  §  196  of  the  Code  the  requirements  of  §§   1)9  to  124  of  the 
Code,  inclusive,  are  made  to  apply  to  villages. 

FORM  OF  AFFIDAVIT  OF  CIRCULATION  OF  GERMAN  NEWSPAPER. 
State   of  Ohio, 


County, 

%  being  duly  sworn,  says  that  he  is  the  proprietor 

[or  editor]    of ,  a  newspaper  printed  in  the   German 

language  in  the  city   [or  village]  of ,  State  of  Ohio; 

and   that   said   newspaper    has   a    bona   fide   paid    circulation   within   said 
municipality  of  not  less  than  one  thousand  copies. 


Subscribed    and    sworn    to    before    me    this day    of 

,  19 


[Seal.]  \    Notary  Public County,  O. 

Sec.  1697  R.  S.  [Mode  of  publication.]  In  all  municipal 
corporations  in  which  there  is  no  newspaper  published  it  shall 
be  sufficient  publication  of  ordinances,  resolutions,  statements, 
orders,  proclamations,  notices  and  reports  required  by  "  An  act 
to  provide  for  the  organization  of  cities  and  incorporated  vil- 
lages," passed  October  22,  1902,  (96  O.  L.  extraordinary  ses- 
sion, 1902)  which  require  publication,  to  post  up  copies  of 
such  ordinance,  resolution,  statement,  order,  proclamation, 
notice  or  report  at  not  less  than  five  of  the  most  public  places 
in  the  corporation,  to  be  determined  by  the  council,  for  a  period 


r*     Or  TH€ 

'KUVERS\TY 

Code  §  124]      ORGANIZATION  OF  CITIES.      COUNCIL.         --^.  ^ 

of  not  less  than  fifteen  days  prior  to  the  taking  effect  thereof, 
except  advertising  for  bids  for  the  construction  of  public  im- 
provements, which  shall  be  published  in  at  least  one  newspaper 
of  general  circulation  in  the  corporation  for  not  less  than  two 
nor  more  than  four  consecutive  weeks,  and  notices  of  the  sale 
of  bonds  which  notices  shall  be  published  in  such  manner  and 
for  such  time  as  is  provided  for  in  section  97  of  "  An  act  to 
provide  for  the  organization  of  cities  [and]  incorporated  vil- 
lages," passed  October  22,  1902  (96  O.  L.  extraordinary  ses: 
sion,  1902). 

The  clerk  shall  make  a  certificate  of  such  posting  and  the 
times,  [when],  and  places  where  done,  in  the  manner  provided 
in  the  preceding  section;  and  such  certificate  shall  be  prima 
facie  evidence  that  the  copies  were  posted  up  as  required.  [66 
v.  166;  97  v.  447.] 

FORM  OF  CERTIFICATE  OF  POSTING. 

L  . . . ,  clerk  of  the  city  [or  village]  of 

State  of  Ohio,  do  hereby  certify  that  there  is  no  newspaper  published  in  said 
municipality,  and  that  publication  of  the  foregoing  ordinance  was  duly 
made  by  posting  true  copies  thereof  at  five  of  the  most  public  places  in  said 
corporation  as  determined  by  the  council,  as  follows:    (here  state  places  of 

posting)  each  for  the  period  of  fifteen  days,  commencing  on  the day 

of ......  19.... 

19,.... 


Clerk  of  the  city  [or  village]  of 


Sec.  1698  R.  S.  [Effect  of  non-publication.]  It  shall  be  deem- 
ed a  sufficient  defense  to  any  suit  or  prosecution  under  an  or- 
dinance, to  show  that  no  such  publication  or  posting  as  herein 
required  was  made.1      [66  v.  166,  §  103;  (S.  &  C.  1525).] 

(1)    Premature      action      under       tion    of     its     publication     is    void. 
ordinance. —  Any  action  taken  un-      Hensly  v.  Hamilton,  3  C.  C.  201. 
der  an  ordinance  before  the  comple- 

Sec.  1699  R.  S.  [By-laws,  ordinances,  etc.,  as  evidence.]  The 
printed  copies  of  the  by-laws  or  ordinances  of  a  corporation, 
published  under  its  authority,  and  transcripts  of  any  by-laws, 
resolutions,  or  ordinances,  or  of  any  act  or  proceeding  of  a  mu- 
nicipal corporation,  recorded  in  any  book,  or  entered  on  any 
minutes  or  journal,  kept  under  the  direction  of  such  corpora- 


32^  the  ohio  municipal  code.    [Code  §§  124a,  125 

tion,  and  certified  by  its  clerk,  shall  be  received  in  evidence, 
through  the  state,  for  any  purpose  for  which  the  original  books, 
ordinances,  minutes,  or  journals  would  be  received.1  [66  v. 
166,  §  104.] 

(1)   Proof  of  ordinance  by  cer-  Cincinnati,   3  N.  P.  253;   Akerman 

tified   transcript   made   by   clerk    is  v.  Lima,  7  N.  P.  92.     State  courts 

not  erroneous.     Ry.  Co.  v.  Ry.  Co.,  will  not  take  judicial  notice  of  mu- 

12  C.  C.  367.  nicipal  ordinances  in  the  absence  of 

Judicial  notice  of  ordinances.  a    statute    requiring   it.     Toledo   v. 

— Municipal   courts  will   take  judi-  Libbie,  19  C.  C.  704   (affirmed  with- 

cial  notice  of  municipal  ordinances,  out  report,  51  O.  S.  562)  ;  Chitten- 

in    prosecutions    under    such    ordi-  den  v.   Columbus,  26  C.   C.   531 ;    5 

nances;    and   a   reviewing  court  oc-  C.  C.    (N.  S.)   84.     See  also  Esch  v. 

cupies    same   position   as  municipal  Elyria,  27  C.  C.  446;   7  C.  C.    (N. 

court.     Strauss  v.  Conneaut,  3  C.  C.  S)    9. 

(N.  S.)  445;  23  C.  C.  320;  Keck  v. 

Sec.  124a.  [Codification  of  ordinances,  etc. ;  publication  in  book 
form  sufficient]  Whenever  ordinances  which  have  been  passed 
and  published  shall  be  revised,  codified,  rearranged  and  pub- 
lished in  book  form  and  certified  as  correct  by  the  city  or  vil- 
lage clerk  and  the  mayor  thereof,  such  publication  in  book  form 
shall  be  taken  and  held  to  be  in  lieu  of  publishing  the  same 
as  required  by  section  124  and  shall  be  a  sufficient  publication 
to  all  intents  and  purposes,  but  any  and  all  ordinances  passed 
subsequent  to  such  revision  and  codification  shall  be  subject 
to  all  the  provisions  of  section  124  requiring  publication  in  a 
newspaper  or  newspapers.  Such  revision  and  codification  may 
be  made  under  appropriate  titles,  chapters  and  sections  and  in 
one  ordinance  containing  one  or  more  subjects.1  [1904,  April 
25,  97  v.  321.] 

(1)  See  §  1695  R.  S.,  p.  320. 

Sec.  125.  [Mayor's  veto.]  *  Every  ordinance  or  resolution 
of  council  shall,  before  it  goes  into  effect,  be  presented  to  the 
mayor  for  approval.     The  mayor,  if  he  approve  the  same  shall 


Code    §    126]    ORGANIZATION    OF    CITIES.       COUNCIL.  325 

sign  it,  and  return  it  forthwith  to  council;  but  if  he  do  not 
approve  it,  he  shall,  within  ten  days  after  its  passage  or  adop- 
tion, return  the  same  with  his  objections  to  council,  or,  if 
council  is  not  in  session,  return  it  to  the  next  regular  meeting 
thereof,  which  objections  council  shall  cause  to  be  entered 
upon  its  journal;  provided,  that  the  mayor  may  approve  or 
disapprove  the  whole  or  any  item,  of  an  ordinance  appropriat- 
ing money.  If  he  do  not  return  such  ordinance  or  resolution 
within  the  time  limited  in  this  section,  it  shall  take  effect  in 
the  same  manner  as  if  he  had  signed  it,  unless  council  by  ad- 
journment prevent  its  return.  When  the  mayor  disapproves  an 
ordinance  or  resolution,  or  any  part  thereof,  and  returns  it 
to  council  with  his  objections,  council  may,  after  ten  days, 
reconsider  the  same,  and  if  such  ordinance,  resolution  or  item, 
upon  such  reconsideration  is  approved  by  the  votes  of  two- 
thirds  of  all  the  members  elected  to  council,  it  shall  then  take 
effect  as  if  signed  by  the  mayor.2 

[Authentication  of  ordinances  and  resolutions.]  Ordinances  and 
resolutions  shall  be  authenticated  by  the  signature  of  the  pre- 
siding officer  and  the  clerk  of  council. 

[Style  of  ordinances.]      The  style  of  all  ordinances  shall  be, 

"  Be  it  ordained  by  the  council  of  the  city  of ,  state 

of  Ohio,"  (filling  the  blank  with  the  name  of  the  city). 

(1)  Old  sections. — Compare  oH  cutt  v.  Columbus,  26  C.  C.  238;  6 
§§1666,    1667    and    1668   R.    S.,   re-       C.  C.    (N.  S.)    271. 

pealed;  and  §§  1655a   (1666-1)   and  Signature  of  mayor,  "per  clerk," 

(1666-2)   R.  S.,  repealed.  on    copy    sent    to    council    is    valid. 

(2)  Veto  of  part  of  an  ordinance  State  ex  rel.  v.  Henderson,  8  B.  201 
by  the  mayor  is  valid.  He  may  veto  ( reversed  on  otner  grounds,  38  O. 
part  and  leave  the  rest  good.     San-  S.  644). 

fleet  v.  Toledo,  10  C.  C.  460.  No   veto   power  in  villages. — 

Effect  of  failure  to  present  to       See  §  196  of  the  Code. 
mayor  under  former  laws,  see  Wal- 

Sec.  126.  [Salaries  of  municipal  officers,  clerks  and  employes.] * 
Council  shall  fix  the  salariesof  all  officers,  clerks  and  employes  in 
the  city  government,2  except  as  otherwise  provided  in  this  act,3 


326  the  ohio  municipal  code.        [Code  §  126 

and,  except  as  otherwise  provided  in  this  act,  all  fees  pertain- 
ing to  any  office  shall  be  paid  into  the  city  treasury.*  The  sal- 
ary of  any  officer,  clerk  or  employe  so  fixed,  shall  not  be  in- 
creased or  diminished  during  the  term  for  which  he  may  have 
been  elected  or  appointed ; 5  provided,  that  the  compensation 
of  members  of  council,  if  any  is  fixed,  shall  be  in  accordance 
with  the  time  actually  consumed  in  the  discharge  of  their  offi- 
cial duties,  but  in  no  event  shall  exceed  one  hundred  and  fifty 
dollars  per  year,  each,  in  cities  having  a  population  according 
to  the  last  or  any  succeeding  federal  census,  of  25,000,  or  less, 
and  for  every  30,000  additional  inhabitants  determined  as 
aforesaid,  said  compensation  may  be,  but  shall  not  exceed,  an 
additional  one  hundred  dollars  per  year  each,  but  the  salary 
shall  in  no  city  be  greater  than  twelve  hundred  dollars  per  an- 
num; and  provided  further,  that  the  salaries  of  members  of 
council  shall  be  paid  semi-monthly  and  a  proportionate  reduc- 
tion in  said  salaries  shall  be  made  for  the  non-attendance  of 
any  member  upon  any  regular  or  special  meeting  thereof. 

(1)  Old  sections.— Compare  old       8   C.   C.    (N.   S.)    114.     See   §1745 
§§  1683,  1683a,  1655a,  1716  and  1717       R.  S.,  p.  543. 

R.   S.    (repealed).  But  §  1751  R.   S.,  providing  that 

(2)  Salaries     fixed   by   council.       all  moneys  received  by  the  mayor, 
See  §  227  of  the  Code  and  notes.  except  the  fees  of  his  office,  shall  be 

Form  of  ordinance  fixing  sala-  paid  into  the  city  treasury,  does  not 

ries  and  bonds  of  officers,  clerks  and  form  an  exception  to  provisions  of 

employes,    and    organizing    various  code   §  126,    as    §  1751    applies   only 

departments    of    the    city    govern-  to  village  mayors.     Bellefontaine  v. 

ment,  see  that  given  under  §  227  of  Haviland,  3  N.  P.    ( N.   S. )    99 ;    15 

the  Code.  Dec.  482;  Cambridge  v.  Smallwood, 

(3)  Exceptions.— As  to  board  27  C.  C.  302;  6  C.  C.  (N.  S.)  230. 
of  public  service,  see  §  145  of  the  Upon  the  failure  of  the  mayor  to 
Code;  board  of  health,  §  189  and  pay  fees  collected  into  city  treasury 
sections  of  R.  S.  therein  re-enacted;  he  may  be  compelled  to  do  so  in  an 
university  directors,  §217;  library  action  brought  for  that  purpose  by 
trustees,    §  218.  the  city.     Cambridge  v.  Smallwood, 

(4)  Fees  of  mayor  must  be  paid  27  C.  C.  302;  6  C.  C.  (N.  S.)  230. 
into  city  treasury  except  as  otherwise  (5)  Increase  or  reduction  dur- 
provided.  This  refers  to  municipal  ing  term. — Former  §  1717  R.  S. 
fees  only.  In  state  cases  the  mayor  (repealed)  on  this  subject,  was  held 
is  allowed  by  §  1745  R.  S.  the  same  to  relate  only  to  officers  of  a  munic- 
fees  as  justices  of  the  peace,  and  ipal  corporation  proper.  State  ex 
such  fees  are  not  turned  into  city  iel.  v.  Bd.  Ed.,  21  C.  C.  785. 
treasury.  Piqua  v.  Cron,  14  Dec.  It  did  not  apply  to  board  of  ex- 
500;   2  N.  P.    (N.  S.)    165;   Ports-  aminers  for  schools.     lb. 

mouth  v.   Milstead,   28   C.   C.   384; 


Code  §§  127, 128]     organization  of  cities,     council. 


327 


Compare  Constitutional  provision 
(Art.  II.,  §20  of  Constitution). 
Under  this  provision  it  was  held 
that  if  the  effect  of  a  statute,  what- 
ever its  terms,  was  to  increase  an 
officer's  salary  during  his  term,  it 
was  void.  State  ex  rel.  v.  Raine, 
49  O.  S.  580.  The  Constitutional 
provision  was  held  not  to  forbid  leg- 
islation reducing  fees  or  percent- 
ages; salary  was  held  to  mean  peri- 
odical payment.  Thompson,  Rela- 
tor, v.  Phillips,  12  O.  S.  617;  so  in- 
crease in  per  diem  compensation 
was  held  not  an  increase  in  salary. 
Gobrecht  v.  Cincinnati,  51  O.  S.  68. 


The  Constitutional  rule  was  held  not 
to  apply  to  an  officer  holding  over 
until  his  successor  is  elected  and 
qualified.  Woehler  v.  Toledo,  6  B. 
282;  nor  to  a  law  reducing  compen- 
sation of  officer  after  election,  but 
before  his  term  began.  State  ex  rel. 
v.  Capeller,  3  B.  853.  The  Constitu- 
tional provision  does  not  refer  to 
municipal  officers.  State  ex  rel.  v. 
Bd.  of  Ed.,  21  C.  C.  785. 

See,  further,  as  to  application  of 
such  a  prohibition,  State  ex  rel.  v. 
Carlisle,  16  Dec.  263;  3  N.  P.  (N. 
S.)    544. 


Sec.  127.  [Certain  acts  not  repealed.]  All  acts  or  parts  of 
acts  which  apply  to  all  cities  in  the  state,  which  are  not  incon- 
sistent herewith,  and  confer  powers  or  impose  duties  upon  the 
councils  of  cities,  and  all  those  which  limit  or  restrict  such 
councils  shall  be  and  remain  in  full  force  and  effect;  and  all 
powers  conferred  by  this  act  upon  municipal  corporations  shall 
be  exercised  by  council,  unless  otherwise  provided  herein.1 


(1)  Other  statutes  relating  to 
powers  and  duties  of  council,  not 
expressly  re-enacted  by  the  Code,  and 


not  expressly  repealed  by  it  may  be 
found  in  Part  II  hereof. 


328 


THE    OHIO    MUNICIPAL    CODE.  [Code  §  128 


2.  EXECUTIVE. 
Sec.  128.  [Executive  power  vested  in  whom.]  1  The  executive 
power  and  authority  of  cities  shall  be  vested  in  a  mayor,  presi- 
dent of  council,  auditor,  treasurer,  solicitor,  department  of  pub- 
lic service,  department  of  public  safety  and  such  other  officers  2 
and  departments  as  are  created  by  this  act. 

( 1 )   Old  sections. —  Compare  old 


§§  1707,  1707&,  1707d,  1707e,  1707/, 
1708a,  (1545-12),  (1545-99),  (1545- 
268),  and  (1545-289)  R.  S.  re- 
pealed, prescribing  the  officers  in 
various  cities. 

(2)   Combining     offices.  —  The 

new  Code  does  not  forbid  the  duties 
of  two  offices  being  performed  by  one 
person  where  such  duties  are  not 
inconsistent.  For  example  the  city 
auditor  may  be  elected  clerk  of 
council. 

Office  and  officer  defined. —  To 

constitute  a  public  office  "it  is  es- 
sential that  certain  independent 
public  duties,  a  part  of  the  sov- 
ereignty of  the  State,  should  be  ap- 
pointed to  it  by  law  to  be  exer- 
cised by  the  incumbent,  in  virtue  of 
his  election  or  appointment  to  the 
office,  thus  created  and  defined,  and 
not  as  a  mere  employe,  subject  to 
the  direction  and  control  of  some 
one  else."  State  ex  rel,  v.  Jen- 
nings, 57  O.  S.  415.  See  also  State 
ex  rel.  v.  McGonagle,  26  C.  C.  685; 
5  C.  C.    (N.  S.)    292. 

Emoluments  and  method  of  choice 
are  not  the  tests  of  what  is  an  office. 
State  ex  rel.  v.  Anderson,  45  O.  S. 
196;  State  ex  rel.  v.  Kennon,  7  0. 
S.   546. 

See  further  for  discussion  of  def- 
inition of  office  and  officer,  Shaw  v. 
Jones,  4  N.  P.  372;  State  ex  rel.  v. 
Hamilton  Co.,  5  C.  C.  602;  State  ex 
rel.  v.  Wilson,  29  O.  S.  347 ;  Walker 
v.  Cincinnati,  21  O.  S.  14;  State  ex 
rel.  v.  Rust,  4  C.  C.  329;  Wood  Co. 


v.  Pargillis,  10  C.  C.  376;  State  v. 
I  Anderson,  57  O.  S.  429;  Barker  v. 
State,  69  O.  S.  68;  State  ex  rel.  v. 
Coon,  26  C.  C.  241;  4  C.  C.  (N.  S.) 
560. 

A  deputy  is  not  an  officer.  War- 
wick v.  State,  25  O.  S.  21 ;  State  v. 
Meyers,  56  O.  S.  340. 

See  also  as  to  officers,  notes  to  § 
227  of  the  Code  and  §  1737  R.  S. 
re-enacted  in  §  224  of  the  Code. 

Discretion       of      legislature.— 

Whether  an  officer  shall  be  elected 
or  appointed  is  a  matter  within  the 
discretion  of  the  legislature,  and 
this  discretion  cannot  be  interfered 
with  by  the  courts.  State  ex  rel. 
v.  Covington,  29  O.  S.  102. 

Abolishment      of      office. —  An 

office  created  by  ordinance  is  abol- 
ished by  the  repeal  of  the  ordinance 
and  the  incumbent  thereby  ceases  to 
be  an  officer.  State  ex  rel.  v.  Jen- 
nings, 57  O.  S.  415. 

Creation  of  office. —  An  act  au- 
thorizing council  to  establish  a 
board  and  fill  it,  creates  the  office, 
though  until  the  council  acts,  it  is 
a  mere  potentiality.  Smith  v. 
Lynch,  29  O.  S.  261. 

New    boards    as    successors. — 

New  boards  having  the  same  func- 
tions as  old  boards,  are  to  be  re- 
garded as  their  successors,  and  pow- 
ers given  to  the  old  boards  and  their 
successors  may  be  exercised  by  the 
new.  Hafer  v.  Cincinnati,  28  B. 
131;  Kirker  v.  Cincinnati,  48  O.  S. 
507. 


Code  §   128]     ORGANIZATION    OF    CITIES.       EXECUTIVE. 


329 


Delegating  power.  —  Officers 
cannot  delegate  discretionary  power. 
Kelley  v.  Cincinnati,  7  N.  P.  360; 
Moore  v.  Cassily,  16  C.  0.  708; 
Bd.  of  Ed.  v.  Mills,  38  O.  S.  383; 
Snelbaker  v.  Jacob,  5  B.  73;  Lip- 
pieman  v.  Cincinnati,  4  C.  C.  327. 
See  further  Ampt  v.  Cincinnati,  17 
C.  C.  516   (affirmed  60  O.  S.  621). 

Municipal  liability  for  offi- 
cers' acts. — In  the  exercise  of  a 
public  or  governmental  function,  a 
municipality  cannot  be  held  liable 
for  the  torts  of  its  officers  or  serv- 
ants, but  where  it  is  acting  in  its 
corporate  capacity,  as  where  it  is 
making  improvements  of  corporate 
property,  the  liability  of  the  munic- 
ipality will  be  governed  by  the  same 
rules  as  in  the  case  of  an  individ- 
ual. Bloom  v.  Newark,  16  Dec. 
393;  3  N.  P.   (N.  S.)   480. 

Municipality  is  liable  for  the  neg- 
ligence of  its  officers  in  managing 
public  improvements.  Dayton  v. 
Pease,  4  O.  S.  80;  Toledo  v.  Cone, 
41  O.  S.  149;  Johns  v.  Cincinnati, 
45  O.  S.  278. 

Municipality  is  liable  for  tort  of 
park  custodian,  acting  within  scope 
of  employment.  Bloom  v.  Newark, 
16  Dec.  393;  3  N.  P.  (N.  S.)  480. 

Municipality  may  be  bound  by 
its  properly  constituted  authorities 
whenever  they  have  power  to  act  in 
the  premises.  Cincinnati  v.  Mor- 
gan, 4  O.  F.  D.  50. 

But  the  municipality  is  not  lia- 
ble for  the  acts  of  officers,  not  done 
in  their  official  capacity,  but  for 
and  between  individuals.  Dayton 
v.  Pease,  4  O.  S.  80;  Bellaire  Co.  v. 
Findlay,  5  C.  C.  418. 

De     facto     officers. — Definition 


and  validity  of  acts,  see  notes,  p. 
503.. 

Admissions    of    officers,    as    to 

dangerous  character  of  work  being 
done,  not  a  part  of  the  res  gestae, 
are  not  admissible  to  prove  notice 
of  character  of  work  on  the  part 
of  the  municipality.  Circleville  v. 
Throne,  1  C.  C.  359. 

Estoppel  does  not  arise  from 
acts  of  officers,  where  there  is  a 
want  of  power  to  act.  Bd.  of  Ed. 
v.  Sinton,  41  O.  S.  504;  Neil  v. 
Barron,  7  N.  P.  84. 

But  where  officers  have  authority 
municipality  may  be  estopped  by 
their  acts  and  admissions,  especially 
if  municipality  is  acting  in  its  pro- 
prietary capacity.  Thomas  v.  Rail- 
way Co.  10  O.  F.  D.  544. 

Suits  against  officers  in  their 
official  capacity. —  See  Karb  v. 
State,  54  O.  S.  383 ;  Board  of  Health 
v.  Columbus,  12  Dec.  553. 

Officers'     personal     liability. — 

Officers  of  municipality  are  not  per- 
sonally liable,  while  acting  within 
the  scope  of  their  authority  and  in 
good  faith.  Stewart  v.  Southard, 
17  O.  402;  Scovil  v.  Geddings,  7  O. 
(Part  II)  211;  Thomas  v.  Wilton, 
40  O.  S.  516;  Rose  v.  Toledo,  24  C. 
C.  540;  1  C.  C.   (N.  S.)   321. 

An  officer  is  personally  liable  for 
a  publication  which  is  libelous  per 
se  though  issued  under  performance 
of  a  public  duty,  if,  in  fact,  the 
statement  published  was  not  per- 
tinent and  material  to  the  matter  in 
hand.  Mauk  v.  Brundage,  68  O.  S. 
89,  97. 

Where  some  members  of  a  board 
in  such  case  were  actuated  by 
malice    and    some    were    not,    it    ia 


330  the  ohio  municipal  code.  [Code  §  129 

proper  practice  to  render  a  verdict  ordinance   under  which   he   received 

against    all    of    the    defendants    for  the    funds    was    invalid.     State    v. 

compensatory    damages    and    exem-  Carter,  67  O.  S.  422. 

plary  damages  against  those  found  Liability  for  acts  of  subordinates, 

to  have  been  guilty  of  malice.     lb.  see    Meara    v.    Holbrook,    20    O.    S. 

Criminal    liability    of    officer    for  137,  143. 
embezzlement   not   removed  because 

(a)    CHIEF   OFFICERS. 

Mayor. 

Sec.  129.  [Mayor:  Election,  term,  qualifications,  duties,  etci]  l 
The  mayor  shall  be  elected  for  a  term  of  two  years,  and  shall 
serve  until  his  successor  is  elected  and  qualified.  He  shall  be 
an  elector  of  the  corporation.  The  mayor  shall  be  the  chief  con- 
servator of  the  peace  within  the  corporation2  and  shall  have 
such  other  powers  and  perform  such  other  duties  as  are  con- 
ferred and  required  in  sections  1746,  1747,  and  1748  of  the 
Revised  Statutes  of  Ohio;  such  as  are  provided  in  this  act, 
and  all  other  acts  or  parts  of  acts  applying  to  all  cities  of  the 
state  and  not  inconsistent  herewith.3 

[Appointment,  removal  and  suspension  of  officers,  clerks  and 
employes.]  The  directors  and  officers  provided  in  this  act  shall 
have  the  exclusive  right,  subject  to  the  limitations  herein  pre- 
scribed to  appoint  all  officers,  clerks  and  employes  in  their  sev- 
eral respective  departments  or  offices,  and  shall  likewise,  subject 
to  the  limitations  herein  prescribed,  have  sole  power  to  remove 
or  suspend  any  such  officers,  clerks  or  employes.4  [1904,  April 
7,  97  v.  78.] 

(1)  Old  sections  1744  R.  S.,  un-  Whether  mayor  is  so  far  the  rep- 
der  Officers  in  Part  II;  §  1754  resentative  of  the  city  that  he  can 
R.    S.}   repealed.  question    regularity    of    judgments 

(2)  Mayor  obstructing  process  against  it,  quere.     lb. 

against  city.— Mayor  may  be  pun-  (3)   Other    statutes    on    powers 

ished   for  contempt   of  court  if  he  and  duties  of  mayor  not  expressly 

forcibly  interferes  with  levy  of  ex-  re-enacted  and  not  repealed  by  the 

ecution      against      city      property.  Code  may  be  found  in  Part  II   (§§ 

State  ex  rel.  v.  Holden,  12  Dec.  91.  1744,    1745    and    1752    R.    S.)  ;    §§ 


Code  §  129]  ORGANIZATION    OF    CITIES.       MAYOR. 


331 


1750  and  1751  are  re-enacted  in  Code 

§  200,  relating  to  mayor  in  villages. 

(4)    Organizing   departments. 

— As  to  determining  what  officers 
there  shall  be  and  their  salaries  and 
bonds,  see  §  227  of  the  Code,  page 
512. 


Filling    vacancies. — As  to  mat- 
ters relating  to  filling  of  vacancies, 

see  §  228  of  the  Code. 


Salary  and  fees,  see 

notes. 


126  and 


Sec.  1746  R.  S.  [Further  duties.]  He  shall  perform  all  the 
duties  prescribed  by  the  by-laws  and  ordinances  of  the  corpora- 
tion ;  and  it  shall  be  his  special  duty  to  see  that  all  ordinances, 
by-laws,  and  resolutions  of  the  council  are  faithfully  obeyed 
and  enforced ;  1  and  he  shall  sign  all  commissions,  licenses,  and 
permits  granted  by  authority  of  the  council,  or  authorized  by 
this  title,2  and  such  other  instruments  as  by  law  or  ordinance 
may  require  his  certificate.3  [66  v.  169,  §  116 ;  (S.  &  C.  1510, 
1511).] 


(1)    Provision       mandatory.  — 

Wheeler  v.  Gavin  5  C.  C.  246,  250. 

The  mayor  cannot  refuse  to  en- 
force ordinances  because  he  may 
think  them  invalid,  until  the  ques- 
tion is  presented  to  him  in  a  proper 
manner.     lb. 

Personal  liability. —  Mayor  is 
not  liable  personally  for  issuing  a 
warrant  for  violation  of  an  ordi- 
nance, because  the  ordinance  is  af- 


terward  declared   invalid.     Wheeler 
v.  Gavin,  5  O.  C.  246. 

(2)  Title  referred  to.— Tbe  ref 
erence  here  is  to  Title  XII  R.  S.,  of 
which  this  section  formed  a  part. 
The  new  Code  is,  by  §  212,  made  a 
part  of  Title  XII. 

(3)  Corporation  deeds  to  be 
signed  by  mayor.  Tiffin  v.  Shaw- 
han,  43  O.  S.  178,  186. 


Sec.  1747  H.  S.  [Supervision  of  conduct  of  officers.]  He  shall 
supervise  the  conduct  of  all  the  officers  of  the  corporation,  in- 
quire into  and  examine  the  grounds  of  all  reasonable  complaints 
against  any  of  them,  and  eause  all  their  violations  or  neglect 
of  duty  to  he  promptly  punished  or  reported  to  the  proper  au- 
thority for  correction.1      [66  v.  169;  §  119.] 


(1)   Corresponding      provisions 

will  be  found  in  §§  38  and  225  of 
the  Code.  In  the  former  the  may- 
or is  given  authority  to  appoint 
examiners  to  investigate  any  de- 
partment of  the  city  government;  in 
the  latter  he  is  empowered  to  pre- 


fer charges  against  any  municipal 
officer  believed  by  him  to  be  guilty 
of  misfeasance  or  non-feasance  in 
office.  See  further  as  to  general 
supervisory  powers  of  the  mayor, 
§§37  and  130  of  the  Code. 


Sec.  1748  R.  S.  [Mayor  to  record  his  protest  against  excess  of 
expenditure.]  If,  in  the  opinion  of  the  mayor,  an  expenditure 
is  authorized  hy  the  council  exceeding  the  revenues  of  the  cor- 


the  ohio   municipal   code.       [Code  §§130,  131,  132 

poration  for  the  current  year,  it  shall  be  his  duty  to  protest 
against  such  expenditure,  and  enter  such  protest,  and  the  rea- 
son therefor,  on  the  journal  of  the  council.1  [66  v.  261,  § 
657.] 

(1)   Supervision  of  mayor  over 
expenditures.— 3ee    §§    35,    36,    37, 

38  and  125  of  the  Code, 


Sec.  130,  [Directors  of  several  departments  of  city  to  meet  with 
mayor  for  consultation  and  advice.]  1  Whenever  the  mayor  shall 
de«m  necessary,  the  directors  of  the  several  departments  of  the 
city  shall  meet  with  him  at  the  time  and  place  designated  by 
said  mayor,  for  consultation  and  advice  upon  the  affairs  of 
the  city. 

(1)  Old  sections.— Compare  old  §  (1545-121)  R.  S.  (Columbus),  re- 
§    (1545-34)  R.  S.   (Cleveland),  and      pealed. 

Sec.  131.  [Mayor,  directors  and  officers  to  attend  meetings  of 
council  upon  request.]  *  It  shall  be  the  duty  of  the  mayor,  the 
directors  and  of  the  several  officers  provided  for  in  this  act,  to 
attend  the  meetings  of  council  when  specifically  requested  by 
council  so  to  do,  and  to  answer  at  such  time  such  questions 
relative  to  the  affairs  of  the  city,  under  their  respective  man- 
agement and  control,  as  may  be  put  to  any  of  them  by  any  mem- 
ber of  the  council. 

(1)  Old  sections.— Compare  old  §  (1545-115)  R.  S.  (Columbus),  re- 
§(1545-27)    R.  S.    (Cleveland),  and      pealed. 

President  of  Council. 

Sec.  132.  [President  of  council:  Election,  term,  qualification, 
duties,  etc.;  when  shall  be  acting  mayor;  vacancy  in  office  of 
mayor.]  The  president  of  council  shall  be  elected  for  a  term 
of  two  years,  and  shall  serve  until  his  successor  is  elected  and 
qualified.1    He  shall  be  an  elector  of  the  corporation,  and  shall 


Code  §133]       ORGANIZATION    OF    CITIES.    AUDITOR.  333 

preside  at  all  regular  and  special  meetings  of  council,  but  shall 
have  no  vote  therein  except  in  case  of  a  tie.2  When  the  mayor 
is  absent  from  the  city,  or  is  unable  for  any  cause  to  perform 
his  duties,  the  president  of  council  shall  be  the  acting  mayor. 
In  case  of  the  death,  resignation  or  removal  of  the  mayor,  the 
president  of  council  shall  become  the  mayor,  and  serve  for 
the  unexpired  term,  and  until  the  successor  is  elected  and  qual- 
ified; and  the  president  pro  tern,  of  council  shall  thereupon 
become  president  thereof,  and  shall  have  the  same  rights,  duties 
and  powers  as  his  predecessor,  and  the  vacancy  thus  created 
in  council  shall  be  filled  as  other  vacancies,  and  council  shall 
elect  another  president  pro  tern.  Provided,  further,  that  while 
the  president  of  the  city  council  is  acting  as  mayor  he  shall 
not  serve  as  president  of  council. 

(1)  See  note    (3)   under  §  116  of  be  considered  a  member  of  council  in 
the   Code.  determining     the      presence      of     a 

(2)  Not   a    member   in    consti=  quorum. 
tuting  quorum. —  The  president  of 

council  under  the  new  Oode  is  not  to 

Auditor. 

Sec.  133.     [Auditor;    election,    term,    qualification,    duties, 

etc.]1  The  auditor  shall  be  elected  for  a  term  of  two  years, 
and  shall  serve  until  his  successor  is  elected  and  qualified. 
He  shall  be  an  elector  of  the  corporation.  The  auditor  shall 
keep  the  books  of  the  city,  exhibit  accurate  statements  of  all 
moneys  received  and  expended,  and  of  all  property  owned  by 
the  city  and  the  income  derived  therefrom,  and  of  all  taxes 
and  assessments.  At  the  end  of  each  fiscal  year,  or  oftener  if 
required  by  council,  he  shall  examine  and  audit  the  accounts 
of  all  officers  and  departments,  and  shall  prescribe  the  form  of 
accounts  and  reports  to  be  rendered  to  his  department,  and 
the  form  and  method  of  keeping  accounts  by  all  other  depart- 
ments, and  shall  have  the  inspection  and  revision  thereof;  but 


334  the  ohio   municipal   code.  [Code  §  134 

nothing*  herein  contained  shall  be  construed  to  repeal  or- im- 
pair the  effect  of  an  act  entitled  "An  act  to  create  a  bureau 
of  inspection  and  supervision  of  public  offices,  and  to  establish 
a  uniform  system  of  public  accounting,  auditing  and  reporting 
under  the  administration  of  the  auditor  of  state/ '  passed  May 
10,  1902. 2  Upon  the  death,  resignation,  removal  or  expiration 
of  the  term  of  any  officer,  the  auditor  shall  audit  the  accounts 
of  such  officer,  and  if  such  officer  be  found  indebted  to  the 
city,  he  shall  immediately  give  notice  thereof  to  council  and  to 
the  solicitor,  and  the  latter  shall  proceed  forthwith  to  collect 
the  same.  He  shall  not  allow  the  amount  set  aside  for  any  ap- 
propriation to  be  overdrawn,  or  the  amount  appropriated  for 
one  item  of  expense  to  be  drawn  upon  for  any  other  purpose, 
or  unless  sufficient  funds  shall  actually  be  in  the  treasury  to 
the  credit  of  the  fund  upon  which  such  voucher  is  drawn. 
Whenever  any  claim  is  presented  to  him,  he  shall  have  power 
to  require  evidence  that  such  amount  is  due,  and  for  this  pur- 
pose may  summon  any  agent,  clerk  or  employe  of  the  city,  or 
any  other  person,  and  examine  him  upon  oath  or  affirmation 
concerning  such  voucher  or  claim.     [1906,  April  16,  98  v.  196.] 

( 1 )  Old  section. —  Compare  old  vision  of  all  public  offices,  and  es- 
§  1765a  R.  S.,  repealed.  tablishing  a  uniform  system  of  pub- 

(2)  Uniform  accounting  law.—  lie  auditing  and  accounting,  as 
The  act  of  May  10,  1902,  creating  amended  April  23,  1904,  will  be 
a  bureau   of   inspection  and   super-  found  under  Officers  in  Part  II. 

Sec.  134.  [Further  as  to  powers  and  duties  of  auditor;  seal.]  1 
Detailed  statements  of  the  receipts  and  expenditures  of  the  sev- 
eral officers  and  departments  for  the  preceding  month  shall  be 
made  to  the  auditor  by  the  heads  thereof  on  the  first  Monday 
of  each,  month.  The  auditor  shall  countersign  each  receipt  given 
by  the  treasurer  before  it  shall  be  delivered  to  the  person  en- 
titled to  receive  the  same,  and  shall  charge  the  treasurer  with 
the  amount  thereof ;  and  if  the  auditor  shall  approve  any  vouch- 


Code  §134]       ORGANIZATION    OF    CITIES.    AUDITOR.  335 

er  contrary  to  the  provisions  of  this  act,  he  and  his  sureties 
shall  be  individually  liable  for  the  amount  of  the  same.  The 
auditor  shall  have  the  powers  and  perform  the  duties  confer- 
red and  required  in  sections  1756,  1757,  1758,  1759  and  1761, 
of  the  Revised  Statutes  of  Ohio,  and  such  other  powers  and 
duties  as  may  now  or  hereafter  be  conferred  or  required  by  or- 
dinance or  by  any  law  applying  to  all  cities  of  the  state.2  Coun- 
cil shall  provide  a  seal  for  the  auditor,  in  the  center  of  which 
shall  be  the  name  of  the  city,  and  around  the  margin  the 
words  "  City  Auditor,"  an  impression  of  which  seal  shall  be 
affixed  to  all  transcripts,  orders,  certificates  or  other  papers 
requiring  authentication. 

( 1 )  Old  sections. —  Compare  old  ments  by  auditor  to  be  furnished  to 
§§    1764   and    1765   R.   S.,   repealed.       mayor;    see    §§    36    and    44    of   the 

(2)  Other    provisions.  —  State-      Code. 

Sec.  1756  R.  S.  [Auditor  to  make  detailed  statement  of  receipts 
and  expenditures.]  He  shall,  on  or  before  the  third  Monday  in 
March  of  each  year,  make  and  enter  in  the  record  book  of  the 
corporation,  a  detailed  statement  of  all  the  receipts  and  expen- 
ditures, the  number  and  amount  of  bonds  issued,  and  for  what 
purpose  of  the  corporation  for  the  preceding  year,  stating  from 
what  sources  the  money  was  received,  and  to  whom  paid,  and 
for  what  purposes  expended  and  showing  the  exact  condition 
of  the  several  funds  of  the  corporation,  and  all  outstanding  li- 
abilities, if  any,  to  whom  due,  and  for  what  purpose.1  [1883, 
March  21 :  80  v.  65 ;  Rev.  Stat.  1880 ;  67  v.  71,  §  129.] 

(1)  Further  duties  of  similar 
character.— See  §§36  and  133  of 
the  Code. 

Sec.  1757  It.  S.  [Statement  to  be  posted  at  voting  precincts,  or 
published  in  newspaper;  penalty  for  neglecting;  publication  in 
book  form  sufficient.]  He  shall  cause  a  copy  of  said  detailed 
statement,  which  shall  be  approved  by  the  mayor  to  be  posted 
at  the  places  of  holding  elections  for  officers  of  the  corporation, 
on  the  first  Monday  of  April,  annually ;  any  incorporation  hav- 
ing a  population  of  over  two  thousand  (2,000),  the  clerk  shall 
have  same  published  once  in  some  newspaper  published  or  of 


336  the  ohio  municipal  code.  [Code  §134 

general  circulation  in  the  corporation,  at  least  five  days  prior 
to  the  first  Monday  of  April ;  and,  upon  the  order  of  the  coun- 
cil, the  clerk  shall,  at  any  time,  furnish  to  it  a  detailed  statement 
of  all  receipts  and  disbursements,  for  such  periods  as  it  may 
require.  Any  clerk  refusing  or  neglecting  to  conform  to  the 
provisions  of  this  and  the  next  preceding  section,  shall  be  fined 
by  the  mayor,  or  police  court  as  the  case  may  be,  not  more  than 
thirty  dollars  or  less  than  twenty-five  dollars  for  the  use  of  the 
corporation.  The  provisions  of  sections  one  thousand  seven 
hundred  and  fifty-six,  and  one  thousand  seven  hundred  and 
fifty-seven  shall  not  apply  to  any  municipal  corporation  that 
publishes  annually  a  detailed  statement  of  the  receipts  and  ex- 
penditures in  book  form  or  in  any  other  printed  manner. 
[1883,  March  21 :  80  v.  65 ;  Eev.  Stat.  1880 ;  67  v.  .71,  §  130.] 

Sec.  1758 U.S.  Report  to  auditor  of  state,  etc.]  He  shall,  on 
or  before  the  first  Monday  of  June,  in  each  year,  report  to  the 
auditor  of  state  the  aggregate  expenses  of  the  corporation  for 
the  preceding  year,  under  the  following  heads:  school,  police, 
streets,  bridges,  fire  department,  lights,  poor,  salaries,  and  in- 
terest; and  also  the  amount  of  the  general  corporation  tax  for 
all  the  preceding  objects,  and  for  any  others  not  enumerated, 
and  the  special  taxes  levied  and  collected  by  the  corporation 
for  the  same  period  1 :  provided,  that  the  city  auditor,  in  any 
city  having  such  officer,  shall  perform  the  duties  imposed  upon 
the  clerk  bv  this  and  the  two  preceding  sections.  [67  v.  71, 
§  131;  (S."&  C.  1543).] 

( 1 )  Reports  to  state  auditor. —  are  required  to  be  made  in  con- 
Under  the  act  of  May  10,  1902,  made  formity  with  said  act,  and  blanks 
to  remain  in  force  by  §  133  of  the  for  this  purpose  are  prepared  in 
Code,  a  bureau  of  inspection  and  the  office  of  the  state  auditor,  who 
supervision  of  all  public  offices  is  is  made  the  head  of  the  bureau, 
created,  and  a  uniform  system  of  The  new  "  uniform  accounting  law  " 
public  auditing  and  accounting  is  will  be  found  under  Officers  in 
established.  The  reports  of  city  Part  II. 
auditors    to    the    auditor    of    state 

Sec.  1759  It,  S.  [Shall  certify  to  the  court  election  of  certain 
officers.]  He  shall  certify  to  the  court  of  common  pleas  of  the 
county  in  which  the  corporation  is  situated,  the  election  of 
every  officer  of  the  corporation  having  power  to  discharge  the 
duties  of  a  justice  of  the  peace,  or  to  take  the  acknowledgment 
of  deeds,  or  to  certify  depositions  or  affidavits  to  be  used  within 
the  limits  of  such  corporation,  with  the  date  of  such  election, 
and  the  time  when  such  officer  became  legally  qualified  to  dis- 


Code  §135]      organization  ov  cities,  treas'e.  337 

charge  the  duties  of  such  office;  which  certificate  shall  be  made 
within  ten  days  after  such  qualification.  [66  v.  171,  §  132 ; 
(S.  &  C.  1536).] 

FORM  OF  CERTIFICATE. 

To  the  Clerk  of  the  Court  of  Common  Pleas,   County,  Ohio : 

I,    ,   auditor   of  the   city   of , 

State  of  Ohio,  .hereby  certify  that  on  the day  of , 

19 .... ,    was  duly  elected ( here 

insert  title  of  office)    and  qualified  for  said  office  on  the day  of 

,  19 

IN  WITNESS   WHEREOF,   I   have  hereunto  set  my  hand   and  official 
seal   this day   of ,    19 


[Seal.]  Auditor  of  the  city  of. 


Sec.  1761  R.  S.  [Penalty  for  neglect.]  Every  clerk  1  whose 
duty  it  shall  be  to  make  such  certificate,  or  record  the  same 
when  presented  for  record,2  who  neglects  or  refuses  to  perform 
the  duties  enjoined  by  this  chapter,3  shall  pay  to  the  treasurer 
of  the  corporation,  for  every  such  neglect  or  refusal,  the  sum 
of  fifteen  dollars,  to  be  recovered  in  a  civil  action,  at  the  suit 
of  such  corporation;  and  shall  also  be  liable  for  all  damages 
arising  from  such  neglect  or  refusal ;  and  any  corporation  clerk 
who  neglects  to  make  report  as  provided  in  section  seventeen 
hundred  and  fifty-eight  shall  forfeit  one  hundred  dollars,  to  be 
recovered  in  a  civil  action,  with  costs,  in  the  name  of  the  cor- 
poration, and  for  ft?  use.  [66  v.  172,  §  134;  67  v.  71,  §  131 ; 
(S.  &  C.  1536).] 

( 1 )  This  refers  to  city  auditor  cord  the  certificate  given  under  § 
and  county  clerk.     See  §  1760  R.  S.,       1759  R.  8.,  supra. 

under  Officers  in  Part  II.  (3)     This    section    was    part    of 

(2)  See  §  V/60  R.  S.,  in  Part  II,  Chapter  5,  Div.  4,  Title  XII,  R.  S. 
infra,  which  requires  the  clerk  of  Chapter  5  related  to  the  powers  and 
the  Court  o*  Common  Pleas  to  re-  duties  of  city  and  village  officers. 

Treasurer. 
Sec.  1S5.  [Treasurer:  Election,  term,  qualification,  powers  and 
duties.]  The  treasurer  shall  be  elected  for  a  term  of  two  years, 
and  shall  serve  until  his  successor  is  elected  and  qualified.  He 
shall  be  an  elector  of  the  corporation.  The  powers  and  duties 
of  the  treasurer  shall  be  such  as  are  provided  in  sections  1767, 
1768  and  1769?  of  the  Kevised  Statutes  of  Ohio;  such  as  are 
provided  in  this  act,  and  all  other  acts  or  parts  of  acts  applying 
to  all  cities  of  the  state  and  not  inconsistent  with  this  act.1 


338  the  ohio  municipal  oode.         [Code  §  .135 

[Deposit  of  moneys.]2  The  treasurer,  upon  giving  bond  as 
required  by  the  council,  may,  by  and  with  the  consent  of  his 
bondsmen,  deposit  all  funds  and  public  moneys  of  which  he 
has  charge  in  such  bank  or  banks,  situated  within  the  county, 
which  may  seem,  best  for  the  protection  of  said  funds,  which 
said  deposit  shall  be  subject  at  all  times  to  the  warrants  and 
orders  of  the  treasurer  required  by  law  to  be  drawn  3  and  all 
profits  arising  from  said  deposit  or  deposits  shall  inure  to  the 
benefit  of  said  funds,4  provided  that  such  deposit  shall  in  no 
wise  release  the  treasurer  from  liability  for  any  loss  which  may 
occur  thereby. 

The  council  shall  have  authority  to  provide  by  ordinance  for 
the  deposit  of  all  public  moneys  coming  into  the  hands  of  the 
treasurer,  in  such  bank  or  banks,  situated  within  the  county, 
as  may  offer,  at  competitive  bidding,  the  highest  rate  of  in- 
terest and  give  a  good  and  sufficient  bond  issued  by  a  surety 
company  authorized  to  do  business  in  Ohio,  or  furnish  good 
and  sufficient  surety,  in  a  sum  not  less  than  twenty  per  cent 
in  excess  of  the  maximum  amount  at  any  time  to  be  deposited ; 
provided,  that  there  shall  not  be  deposited  in  any  one  bank  an 
amount  in  excess  of  the  paid  in  capital  stock  and  surplus  of 
such  bank,  and  not  in  any  event  to  exceed  one  million 
(1,000,000.00)  dollars  and  to  determine  in  such  ordinance  the 
method  by  which  said  bids  shall  be  received,  the  authority  which 
shall  receive  them,  and  which  shall  determine  the  sufficiency 
of  the  security  offered,  the  time  for  the  contracts  for  which 
deposits  of  public  money  may  be  made,  and  all  details  for 
carrying  into  effect  the  authority  here  given,  provided  that  all 
such  proceedings  in  connection  with  such  competitive  bidding 
and  the  deposit  of  money  shall  be  conducted  in  such  manner  as 
to  insure  full  publicity,  and  shall  be  open  at  all  times  to  the 
inspection  of  any  citizen ;  and  provided  further,  that  as  to  any 
deposits  made  under  authority  of  an  ordinance  of  the  council, 


Code  §  135]    organization  of  cities,     treas'r.  339 

pursuant  hereof,  neither  the  treasurer  nor  his  bondsmen,  if  the 
treasurer  has  exercised  due  care,  shall  be  liable  for  any  loss 
occasioned  thereby.5      [1904,  April  23,  97  v.  270.] 

(1)  Other  statute  applying  to  legislative  declaration  of  the  princi- 
powers  and  duties  of  treasurer  not  pie  announced  in  Eshelby  v.  Board 
repealed  and  not  re-enacted  by  the       of  Education,  66  0.  S.  71. 

Code  may  be  found  under  Officers  (5)  Forms  of  ordinances  pro- 
in  Part  II  (§  1773  R.  S.).  viding  for  the  establishment  of  such 
Payments  by  county  treasurer  to  depositaries  of  public  moneys,  may 
city  treasurer  of  moneys  belong-  be  drafted  from  the  various  depos- 
ing to  municipality,  see  §§  1047,  itary  acts  in  the  Revised  Statutes. 
1122,  1122a,  1123  and  1771  R.  S.,  See,  for  example,  §§  (1136-14)  et 
under  title  Officers  in  Part  II.  seq.        (County       of       Cuyahoga)  ; 

(2)  Old  section. —  Compare  old  (1784-1)  et  seq.  (Cleveland); 
§   (1773-1)   R.  S.,  repealed.  (1784-21)  et  seq.  (Toledo);    (1784- 

(3)  Mandamus    will  lie  to  com-  41)    et  seq.    (Tiffin). 

pel    a    treasurer    to    pay    on    order  Validity  of  provision  that  coun- 

properly  drawn  on  him,   and  if  he  cil     may     provide     for     deposit    of 

refuses    wilfully    and    oppressively,  money  by  treasurer,  upheld.     State 

he    is    liable    to   a   personal    action.  ex    rel.    v.    Bowers,    26    C.    C.    326, 

Bates  v.  Fries,  2  Disney,  511.  (aff'd  70  O.  S.  423). 

(4)  Interest  on  public  funds.—  Duty  of  treasurer.— Treasurer 
The  requirement  that  all  profits  de-  has  no  discretion  to  refuse  to  obey 
rived  from  the  ueposit  of  public  ordinance,  and  mandamus  will  lie 
funds  shall  inure  to  the  benefit   of  to  compel  obedience.     lb. 

such   funds,   and   this,   even   though  Applies  to   school   funds. — This 

the  treasurer  is  liable  for  any  loss  section  applies  to  school  funds.  lb. 
occasioned    by    such    deposit,    is    a 

Sec.  1767  It.  S.  [Powers  and  duties  of  treasurer.]  The  treasur- 
er shall  keep  an  accourate  account  of  all  moneys  by  him  re- 
ceived, showing  the  amount  thereof,  the  time  when,  from  whom, 
and  on  what  account  received ;  also  of  all  disbursements  by  him 
made,  showing  the  amount  thereof,  the  time  when,  to  whom,  and 
on  what  account  paid;  and  he  shall  so  arrange  his  books  that 
the  amount  received  and  paid  on  account  of  separate  funds,  or 
specific  appropriations,  shall  be  exhibited  in  separate  accounts ; 
and  in  addition  to  the  ordinary  duties  of  such  officer ,  he  shall 
have  such  powers  and  perform  such  duties  as  are  prescribed  in 
this  title,1  or  as  may  be  required  by  ordinance  of  the  corpora- 
tion not  inconsistent  with  this  title,  and  not  incompatible  with 
the  nature  of  his  office.      [QQ  v.  174,  §  151.] 

( 1 )  Title  referred  to. — This  sec-  The  Code  is,  by  §  212,  made  a  part 
tion   was   part  of  Title  XII  R.   S.       of  Title  XII. 

Sec.  1763 U.S.  [Further  duties  of  treasurer.]  He  shall  de- 
mand and  receive  from  the  county  treasurer  all  taxes  levied  and 
assessments  made  and  certified  to  the  county  auditor  by  author- 
ity of  the  council,  and  by  the  auditor  placed  on  the  tax-list  for 
collection,  and -from  all  persons  authorized  to  collect  or  re- 
quired to  pay  the  same;1  all  moneys  accruing  to  the  corpora- 
tion from  judgments,  fines,  penalties,  forfeitures,  licenses>  and 
costs  taxed  in  the  mayor's  and  police  courts,  and  debts  due  the 


340  the  ohio  municipal  code.      [Code  §§136,  137 

corporation ;  and  lie  shall  disburse  the  same  on  the  order  of  such 
person  or  person  [s]  as  may  be  authorized  by  law  or  ordinance 
to  issue  orders  therefor.      [66  v.  174,  §  152.] 

( 1 )  Taxes  paid  under  protest.  lected  and  belonging  to  the  city,  al- 
—  City  treasurer  may  compel  coun-  though  paid  under  protest.  Ratter- 
ty  treasurer  to  pay  over  moneys  col-       man  v.  State,  44  0.  S.  641. 

Sec.  1769  R.  S.  [Quarterly  account]  He  shall  settle  and  ac- 
count with  the  council  quarterly,  and  also  whenever  the  coun- 
cil may  by  resolution  or  ordinance  require;  and  he  shall  re- 
port annually  to  the  council,  at  the  first  regular  meeting  thereof 
in  April,  the  condition  of  the  finances  of  the  corporation  and 
the  amount  received  by  him,  and  the  sources  whence  received, 
and  the  disbursements  by  him  made,  and  on  what  account,  dur- 
ing the  year  preceding  the  first  day  of  April ;  and  such  account 
shall  exhibit  the  balance  due  on  each  fund  which  may  have 
come  into  his  hands  during  the  year.      [66  v.  174,  §  153.] 

Sec.  136.  [Further  duties  of  treasurer.]  The  treasurer  shall 
receive  and  disburse  all  funds  of  the  city  including  the  school 
funds,1  and  such  other  funds  as  arise  in  or  belong  to  any  de- 
partment or  part  of  the  city  government. 

(1)     As    treasurer    of    school  urer  of  school  funds,  see  Knorr  v. 

funds.— By   §  4042  R.   S.  "in  each  Bd.  of  Ed.,  9  B.  182;  Eshelby  v.  Bd. 

city    district   the    treasurer    of    the  of  Ed.,  66  O.  S.  71.  As  to  additional 

city  funds  shall  be  treasurer  of  the  bond  before  acting  as  treasurer  of 

school   funds."  school    fund,    see   Knorr   v.    Bd.    of 

As  to  compensation  and  liability  Ed.,  supra;  Eshelby  v.  Bd.  of  Ed., 

of  treasurer  when  acting  as  treas-  supra. 

Solicitor. 

Sec.  137.  [Solicitor:  Election,  term  and  qualifications.]  The 
solicitor  shall  be  elected  for  a  term  of  two  years,  and  shall  serve 
until  his  successor  is  elected  and  qualified.  The  solicitor  shall 
be  an  elector  of  the  city,  and  admitted  to  practice  law  in  the 
courts  of  Ohio. 

[Powers  and  duties.]  The  powers  and  duties  of  the  solicitor 
shall  be  such  as  are  provided  in  sections  1776,  1777,  1778, 
1779  and  1780,  of  the  Kevised  Statutes  of  Ohio;  such  as  are 


Code  §137]     ORGANIZATION    OF    CITIES.    SOLICITOR.  341 

provided  in  this  act,  and  all  other  acts  or  parts  of  acts  having 
uniform  operation  throughout  the  state  and  not  inconsistent 
with  this  act,1  and  he  shall  prepare  all  contracts,  bonds  and 
other  instruments  in  writing  in  which  the  city  is  concerned,  and 
shall  serve  the  several  directors  and  officers  mentioned  in  this 
act  as  legal  counsel  and  attorney ;  provided  that  no  action,  as 
provided  in  sections  1777  and  1778,  to  enjoin  the  performance 
of  a  contract  or  the  payment  of  any  bonds  heretofore  or  here- 
after entered  into  or  issued  by  a  municipal  corporation,  shall 
be  brought  or  maintained  unless  such  action  is  commenced 
within  one  year  from  the  date  of  such  contract  or  bonds,  and 
this  provision  shall  apply  to  pending  cases.2 

[Shall  be  prosecuting  attorney  of  police  court.]  The  solicitor 
shall  also  be  prosecuting  attorney  of  the  police  court,  and  shall 
receive  for  this  service  such  compensation  as  council  may  pre- 
scribe, and  such  additional  compensation  as  the  county  com- 
missioners shall  allow;  provided,  that  where  council  allows  an 
assistant/or  assistants  to  the  solicitor,  said  solicitor  may  desig- 
nate an  assistant  or  assistants  to  act  as  prosecuting  attorney  or 
attorneys  of  the  police  court.  The  duties  of  the  solicitor  as 
prosecuting  attorney  of  the  police  court  shall  be  such  as  are 
provided  in  section  1813  of  the  Eevised  Statutes ;  such  as  are 
provided  in  this  act,  and  in  all  other  acts  or  parts  of  acts  ap- 
plying to  all  cities  of  the  state -and  not  inconsistent  herewith.3 
In  case  of  the  inability  or  absence  of  the  solicitor  or  any  of 
his  assistants  to  act  as  prosecuting  attorney  of  the  police  court, 
the  provisions  of  section  1815  of  the  Revised   Statutes  shall 

apply. 

• 

(1)  Other  statutes  relating  to  v.  St.  Ry.  1  N.  P.  (N.  S.)  25;  13 
powers  and  duties  of  solicitor,  not       Dec.  670. 

re-enacted  and  not  repealed  by  the  (3)    As  police  court  prosecutor. 

Code,  may  be  found  under  Officers  — Other  statutes  relating  to  duties 

in   Part    II.  of  solicitor  as  prosecuting  attorney 

(2)  Validity  of  limitation. —  of  the  police  court,  not  re-enacted 
The  limitation  in  this  section  was  and  not  repealed,  may  t>e  found  un- 
held   unconstitutional    in   Horstman  der  Judicial  in  Part  II. 


342  the  ohio  municipal  code.  [Code  §137 

Sec.  1776  E.  S.  [Pay  over  money.]  He  shall  pay  over  to  the 
treasurer  all  moneys  which  may  come  into  his  hands  belong- 
ing to  the  corporation,  or  which  may  come  into  his  hands  by 
way  of  fines,  forfeitures,  costs,  or  otherwise,  and  take  the  treas- 
urer's duplicate  receipt  therefor,  one  of  which  he  shall  file  with 
the  clerk  of  the  corporation,  or  in  case  there  be  an  auditor, 
then  witb  such  auditor.      [66  v.  175,  §  158.] 

Sec.  1777  R.  S.  [City  solicitor  shall  apply  for  injunction  in 
certain  cases.]  He  shall  apply  in  the  name  of  the  corporation,1 
to  a  court  of  competent  jurisdiction  for  an  order  of  injunction 
to  restrain  the  misapplication  of  funds  of  the  corporation,  or 
the  abuse  of  its  corporate  powers,  or  the  execution  or  perform- 
ance of  any  contract  made  in  behalf  of  the  corporation  in  con- 
travention of  the  laws  or  ordinance  gfoveming  the  same,  or  which 
was  procured  by  fraud  or  corruption.  And  he  shall  likewise, 
whenever  an  obligation  or  contract  made  on  behalf  of  the  cor- 
poration granting  a  right  or  easement,  or  creating  a  public  duty, 
is  being  evaded  or  violated,  apply  for  the  forfeiture  or  the  spe- 
cific performance  of  the  same  as  the  nature  of  the  case  may  re- 
quire. And  in  case  any  officer  or  board  fails  to  perform  any 
duty  expressly  enjoined  by  law  or  ordinance,  he  shall  apply 
to  a  court  of  competent  jurisdiction  for  a  writ  of  mandamus  to 
compel  the  performance  of  such  duty.2  [87  v.  122;  81  v.  188, 
189;  Rev.  Stat.  1880;  66  v.  175,  §  159;  (S.  &  C.  1559).] 

(1)  Action  in  whose  name. —  The  solicitor  may  bring  the  suit 
Where  solicitor  brings  action  in  his  in  the  name  of  a  taxpayer,  with 
own  name  as  solicitor  and  taxpay-  his  consent,  although  not  requested 
er,  though  in  behalf  of  the  munici-  in  writing  to  do  so.  Cincinnati  St. 
pality,   court  may  strike   solicitor's  Ry.  v.  Smith,  29  0.  S.  291. 

name  from  title  of  cause  and  sub-  No    action    of    council    is    neces- 

stitute  name  of  municipality.     L.  S.  -  sary  to  authorize  solicitor  to  bring 

&  M.  S.  Ry.  Co.  v.  Elyria,  69  O.  S.  suit   under   this    section.     State   ex 

414.  rel.  v.  Bowers,  26  C.  C.  326 ;  4  C.  C. 

(2)  Construction  — §§  1777  and  (N.  S.)  345,  (aff'd  70  O.  S.  423). 
1778  are  remedial  and  should  re-  For  general  matter  relating  to 
ceive  a  construction  which  will  actions  under  this  and  succeeding 
make  the  remedy  a  useful  one.  Gas  section,  see  notes  on  page  343  et  seq. 
and  Water  Co.  v.  Elyria,  57  0.  S.  Bond.— The  solicitor  need  not 
374,  383;  Dorgan  v.  Columbus,  12  give  bond  in  procuring  injunction 
Dec.  121,  128;  Rogers  v.  Railway  under  this  section.  Forsythe  v. 
Co.,  12  Dec.  136;  Fergus  v.  Colum-  Winans,  44  0.  S.  277. 

bus,  6  N.  P.  82. 


Code  §137]     ORGANIZATION    OF    CITIES.    SOLICITOR. 


343 


Sec.  1778  R.  S.  [When  taxpayer  may  institute  suit.]  *  In  case 
he  fail  upon  the  request  of  any  taxpayer  of  the  corporation  to 
make  the  application  provided  for  iu  the  preceding  section,  it 
shall  be  lawful  for  such  taxpayer  to  institute  suit  for  such 
purposes  in  his  own  name,  on  behalf  of  the  corporation ;  2  pro- 
vided, that  no  such  suit  or  proceeding  shall  be  entertained  by 
any  court  until  such  request  shall  have  been  first  made  in  writ- 
ing,3 and  further,  provided  that  no  such  suit  or  proceeding  shall 
be  entertained  by  any  court  until  such  taxpayer  upon  motion 
of  the  solicitor  or  corporation  counsel  shall  have  given  security 
for  the  costs  of  the  proceeding.  [95  v.  317 ;  87  v.  122 ;  67  v. 
72,  §  160;  (S.  &C.  1559).] 


(1)  Section  given  as  amended 

in  95  O.  L.  317.  Though  the  sec- 
tion is  referred  to  in  the  Code  as  the 
section  contained  In  the  Revised 
Statutes,  the  re-enactment  is  to  be 
taken  as  including  the  section  as 
amended;    (§  212  of  the  Code). 

Constitutionality  of  section  up- 
held. Horstman  v.  St.  Ry.,  13  Dec. 
670;  1  N.  P.   (N.  S.)   25. 

(2)  Purpose     of     provisions. — 

The  object  of  §§  1777  and  1778  is 
not  to  subserve  the  personal  inter- 
ests or  protect  any  individual  right 
peculiar  to  the  taxpayer,  but  to 
protect  the  municipal  corporation. 
Knorr  v.  Miller,  5  C.  C.  609  (af- 
firmed 27  B.  64)  ;  Gallagher  v. 
Johnson,  31  B.  24;  Hensly  v. 
Hamilton,  3  C.  C.  201;  Peppard  v. 
Cincinnati,  6  N.  P.  57;  State  v. 
Bowers,  26  C.  C.  326;  4  C.  C.  (N. 
S.)   345  (aff'd  70  O.  S.  423). 

The  only  question  in  such  case  is 
whether  there  has  been  a  violation 
of  corporate  rights  and  this  is  one 
between  the  municipality  and  its  of- 
ficers. The  other  party  to  an  al- 
leged illegal  municipal  contract  can- 
not come  into  the  case  and  ask  to 
have  his  rights  determined.  John- 
son v.  Farley,  8  N.  P.  498. 

The  taxpayer's  right  at  common 
law  to  enjoin  abuse  of  corporate 
power  and  misapplication  of  public 
funds  by  municipal  officers  existed 
and  was  recognized  independent  of 
these  statutes,  which  limit  and  reg- 
ulate the  bringing  of  such  suits. 
Raynolds  v.  Cleveland,  13  Dec.  125 
(reversed   on   other  grounds,   24   C. 


C.  215) ;  Cincinnati  St.  Ry.  r. 
Smith,  29  O.  S.  291. 

In  what  cases  action  lies. —  The 

abuse  of  corporate  powers,  within 
the  meaning  of  §  1777,  includes  the 
unlawful  exercise  or  powers  pos- 
sessed by  the  corporation  as  well 
as  assumption  of  power  not  con- 
ferred. Gas  &  Water  Co.  v.  Elvria, 
57  O.  S.  374. 

Injunction  will  lie  to  prevent  a 
bond  issue  to  raise  a  fund  to  be  ap- 
plied for  an  object  unauthorized  and 
void.     lb. 

Every  contract  made  in  violation 
of  the  law  or  ordinance  governing 
the  matter  is  an  abuse  of  corporate 
power.     Shaw  v.  Jones,  4  N.  P.  372. 

A  taxpayer  may  enjoin  the  mu- 
nicipality from  allowing  the  use  of 
its  streets  for  laying  pneumatic 
tubes  for  carrying  packages  by  com- 
pressed air,  where  the  grant  is  un- 
lawful. Ampt  v.  Cincinnati,  21  C. 
C.  300. 

Solicitor  has  power  to  bring  ac- 
tion for  forfeiture  of  franchises 
granted  to  a  gas  company.  Colum- 
bus v.  Federal  Gas  &  Fuel  Co.,  14 
Dec.  261   (aff'd  72  O.  S.  637). 

As  to  injunction  by  taxpayer 
against  change  of  grade  of  street, 
see  Corry  v.  Cincinnati,  22  B.   194. 

City  may  bring  action  against  in- 
terurban  company  coming  into  mu- 
nicipality by  virtue  of  §  3443-11  for 
failure  of  such  company  to  give 
transfers,  etc.,  and  otherwise  com- 
ply with  conditions  imposed  on  city 
company.  Cincinnati  v.  St.  Ry.  Co., 
16  Dec.  220;  3  N.  P.  (N.  S.)  489. 

Taxpayer     may     enjoin     council 


344 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  13? 


from  removing  mayor  under  an  in- 
valid ordinance,  as  both  a  misappli- 
cation of  funds  and  an  abuse  of  cor- 
porate power.  Dorgan  v.  Colum- 
bus, 12  Dec.  121.  But  see  Shaw 
v.  Jones,  4  N.  P.  372. 

Taxpayer  may  enjoin  awarding 
municipal  contract,  as  for  a  street 
improvement,  to  one  not  the  lowest 
bidder.  Tucker  v.  Newark,  19  C. 
C.  1,  3;  Pease  v.  Ryan,  7  C.  C.  44. 

Municipality  may  be  enjoined 
from  paying  money  to  a  water  com- 
pany in  pursuance  of  a  contract, 
claimed  to  be  illegal  to  pay  hy- 
drant rentals  for  fire  purposes,  as  a 
misappropriation  of  funds  and  per- 
formance of  a  contract  in  contra- 
vention of  law.  Defiance  v.  Coun- 
cil, 23  C.  C.  96,  (reversed  on  other 
grounds,   68   0.   S.  520). 

Expenditure  of  public  funds  by 
municipal  officers  in  exploitation 
of  a  particular  system  of  valuing 
property  for  taxation  may  be  en- 
joined without  regard  to  the  merits 
of  the  system.  Crawford  v.  Madi- 
gan,  13  Dec.  494. 

Street  railway  grants. —  Grant  of 
franchise  to  street  railway  com- 
pany is  a  contract  on  behalf  of  the 
city  within  meaning  of  sec.  1777. 
Cincinnati  St.  Ry.  Co.  v.  Smith,  29 
O.  S.  291.  See,  as  to  actions  by 
taxpayers  relating  to  street  railway 
grants,  notes  under  sec.  2501  R.  S. 
on  page  148. 

But  want  of  consents  'of  abutting 
owners  will  not  be  ground  for  tax- 
payer's injunction  against  street 
railway  grant.  See  note  5,  "  Right 
of  action  for  want  of  consents,"  p. 
153. 

Where  other  remoay. —  Action  by 
taxpayer  is  not  barred  because 
there  may  be  a  remedy  by  the  state 
by  action  of  quo  warranto.  Horst- 
man  v.  St.  Ry.  Co.,  13  Dec.  670; 
Elyria  v.  Ry.  Co.,  12  Dec.  609  (69 
O.  S.  414). 

Character  of  action. —  Solicitor 
may  have  mandatory  injunction  to 
compel  gas  company  to  charge  for 
gas,  the  price  required  by  o -dinance. 
Gas  Light  Co.  v.  Zanesville,  47  O. 
S.  35. 

He  may  have  a  mandatory  injunc- 
tion to  compel  a  gas  company  to 
carry  out  its  contract  with  the  mu- 
nicipality. Toledo  v.  Gas  Co.,  5  C. 
C.  557. 

One  with  whom  the  municipality 
has  made  an  illegal  contract  may  be 
enjoined      from      performance,      al- 


though the  municipality  has  fully 
performed.  Haskins  v.  Cincinnati 
Con.  St.  Ry.  Co.,  4  B.  1126. 

Legislation  cannot  be  enjoined, 
but  if  the  object  of  an  ordinance 
is  illegal,  injunction  will  lie  to 
prevent  its  being  carried  out. 
Moore  v.  Hoffman,  2  C.  S.  C.  R. 
453;  Johnson  v.  Cincinnati,  26  B. 
223. 

A  taxpayer  cannot  complain  that 
a  city's  acts,  under  legislative  au- 
thority, will  violate  the  obligation 
of  the  city's  contracts.  Only  the 
creditor  can  complain  in  such  case. 
Cincinnati  v.  Dexter,  55  O.  S.  93. 

When  sections  do  not  apply. — 
These  sections  do  not  apply  to  ac- 
tions against  board  of  education. 
Youmans  v.  Board  of  Education,  13 
C.  C.  207.  But  a  taxpayer  might, 
independently  of  these  sections, 
bring  suit  to  restrain  the  board  of 
education  from  doing  an  illegal  act. 
lb.;  Weir  v.  Day,  35  O.  S.  143,  146. 

Contract  by  police  commissioners 
which  is  illegal,  but  does  not  in- 
volve a  use  of  city  funds,  is  not 
enjoinable  under  this  section  as  an 
abuse  of  corporate  power  of  the 
city.  Fitzpatrick  v.  Bromwell  Co. 
5  N.  P.  165. 

Police  funds,  under  former  stat- 
utes, were  held  not  to  be  city  funds, 
within  the  meaning  of  these  sec- 
tions. Yaple  v.  Police  Commission- 
ers, 2  C.  C.  406. 

A  taxpayer  cannot  maintain  a 
suit  to  enjoin  one  railroad  company 
from  transporting  the  cars  of  an- 
other across  the  city  streets  on  the 
ground  that  the  contract  between 
the  two  companies  is  ultra  vires. 
Rogers  v.  Ry.  Co.,  47  B.  83. 

These  sections  have  no  applica- 
tion to  an  action  by  owners  seeking 
to  enjoin  sale  of  their  property  to 
pay  assessments,  on  the  ground  that 
the  ordinance  for  the  improvement 
is  an  unreasonable  one.  Mills  v. 
Norwood,  6  C.  C.  305. 

Nor  an  action  by  abutting  prop- 
erty owner  to  enforce  the  proper 
use  of  the  streets  in  front  of  his 
property.  Herrick  v.  Cleveland,  7 
C.  C.  470. 

The  lowest  bidder  for  a  munici- 
pal contract  cannot,  as  such,  en- 
join the  offices  from  rejecting  all 
bids,  though  as  a  taxpayer  he  might 
proceed  under  these  sections,  and 
then  he  must  first  apply  to  solicitor. 
Johnson  v.  Westside  St.  Ry.,  10  B. 
345;    Johnson  v.   Cincinnati,   26   B, 


Code  §  137]      ORGANIZATION    OF    CITIES.      SOLICITOR. 


345 


223;  but  see  Lake  Shore  Foundry 
v.  Cleveland,  8  C.  C.  671;  Mathers 
v.  Cincinnati,   3  B.  709. 

Where  there  is  no  solicitor  of  the 
municipality,  §  1777  R.  S.  does  not 
apply  and  the  taxpayer  may  sue  on 
behalf  of  the  corporation  without 
previous  written  request.  Cope  v. 
Wellsville,  25  B.   250. 

An  abutting  owner  as  such  can- 
not enjoin  a  contract  for  improve- 
ment because  of  defects  in  proceed- 
ings before  any  assessment  has  been 
levied  against  him  or  any  work  done. 
A  taxpayer  suing  on  behalf  of  the 
corporation  might  do  this,  under 
§  1778,  but  this  is  a  special  pro- 
vision and  is  not  to  be  applied  to 
other  cases  than  those  mentioned. 
Wood  v.  Pleasant  Ridge,  12  C.  C. 
177. 

So  an  abutting  owner  cannot  en- 
join laying  natural  gas  pipes  in 
street,  because  question  not  sub- 
mitted to  popular  vote  as  required 
by  law.  Only  the  public  can  sue 
in  such  case.  Webb  v.  Ohio  Gas 
Fuel  Co.,  16  B.  121. 

Sections  do  not  provide  for  re- 
covery back  of  money  unlawfully 
expended,  but  only  the  restraining 
of  unlawful  disbursements  not  yet 
made.  Crawford  v.  Madigan,  13 
Dec.    494. 

Nor  for  recovery  of  money  al- 
leged to  be  fraudulently  withheld 
from  the  municipality.  Nicholson 
v.  Maile,  15  Dec.  682;  3  N.  P.  (N. 
S. )  201 ;  State  v.  Zumstein,  4  C.  C. 
268. 

Nor  for  recovery  of  a  claim 
against  the  municipality.  State  ex 
rel.  v.  Roebuck,  15  Dec.  400. 

When  brought. — In  enjoining 
illegal  bond  issue  or  tax  levy  it  is 
not  necessary  to  wait  until  the  fund 
is  Taised.  Gas  &  Water  Co.  v. 
Elyria,  57  O.  S.  374,  383.  In  en- 
joining street  railway  grant  it  is 
not  material  that  franchise  is  not  to 
go  into  effect  until  many  years  later. 
Horstman  v.  St.  Ry.  Co.,  14  Dec. 
545.  An  action  to  enjoin  payment 
under  a  contract  on  ground  of  in- 
validity ab  initio  of  contract,  is 
barred  under  §  4985  R:  S.,  in  ten 
years  from  time  contract  was  en- 
tered into.  Defiance  Water  Co.  v. 
Defiance,  68  0.  S.  520.  Where  op- 
eration under  illegal  franchise  con- 
stitutes public  nuisance  statute  of 
limitations  does  not  apply.     Horst- 


man v.   St.   Ry.   Co.,   13   Dec.   670; 
1  N.  P.    (N.  S.)   25. 

Estoppel  to  sue. — For  cases 
where  municipality  was  held  es- 
topped to  sue  because  it  had  per- 
mitted operation  under  the  right 
or  contract  for  many  years  and  al- 
lowed large  expenditures  to  be  made 
without  objection,  see  Ampt  v.  Cin- 
cinnati, 34  B.  Ill,  112;  Pugh  v. 
Elec.  Light  Co.,  19  C.  C.  594 ;  Craw- 
ford v.  Madigan,  13  Dec.  494;  Co- 
lumbus v.  Federal  Gas  &  Fuel  Co., 
14  Dec.  261  (aff'd  72  O.  S.  632); 
Columbus  v.  Bohl,  13  Dec.  569 ;  1  N. 
P.  (N.  S.)  469.  But  see  Herten- 
stein  v.  Herrmann,  6  N.  P.  93 
(where  suit  brought  only  four  days 
after  work  begun)  ;  Ross  v.  Colum- 
bus, 8  N.  P.  420  (where  action  be- 
gun before  grant  of  franchise.)  See 
also  on  the  subject  of  estoppel,  De- 
fiance v.  Council,  23  C.  C.  96  (re- 
versed other  grounds,  68  O.  S.  520 ) , 
where  making  payments  by  city  un- 
der contract  held  not  to  estop. 

See  also  Horstman  v.  St.  Ry.  Co., 
12  Dec.  756  (no  estoppel  where  mu- 
nicipality without  power  to  act). 

See  further  note  "Estoppel,"  p. 
372. 

Action  by  one  taxpayer  is  bar  to 
similar  action  by  another  taxpayer, 
although  not  a  resident  at  the  time 
of  first  action.  Hallock  v.  Colum- 
bus, 1  N.  P.  (N.  S.)  205;  13  Dec. 
488.  See  also  Atlas  Bank  v.  Colum- 
bia Tp.,  13  Dec.  472. 

Contracts  made  under  law 
formerly  considered  constitu 
tional. — Effect  of  subsequent  contra 
ruling. — Where  contracts  have  been 
made  or  obligations  entered  into  on 
the  faith  of  a  certain,  definite  and 
apparently  fixed  construction  of  the 
constitution  by  the  highest  court, 
such  contracts  will  not  be  invali- 
dated nor  such  obligations  avoided 
by  the  subsequent  judgment  of  the 
court  that  the  former  construction 
was  erroneous.  Friedman  v.  Cin- 
cinnati, 13  Dec.  404.  See  Alter  v. 
Cincinnati,  56  O.  S.  47;  Atlas  Bank 
v.  Columbia  Tp.,  13  Dec.  472;  Gault 
v.  Columbus,  13  Dec.  575;  1  N.  P. 
(N.  S.)-201;  Lewis  v.  Symmes,  61 
O.  S.  475;  Douglas  v.  Pike  Co.,  101 
U.  S.  677. 

Contracts  for  necessary  public  im- 
provements entered  into  under  a 
special  act,  but  before  May  1,  1903, 
may  be   upheld  and  work  thereun- 


346 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  137 


der  allowed  to  continue,  though  the 
law  may  be  unconstitutional  under 
recent  decisions  of  the  Supreme 
Court.  Columbus  v.  Bohl,  1  N.  P., 
469;  13  Dec.  569. 

Interest  of  taxpayer. —  The  tax- 
payer need  not  have  a  private  inter- 
est peculiar  to  himself,  and  not 
shared  by  all  taxpayers,  in  order  to 
proceed.  Rogers  v.  Ey.  Co.,  12  Dec. 
136;   Knorr  v.  Miller,  5  C.  C.  609. 

As  to  whether,  in  order  to  main- 
tain the  suit  the  taxpayer  must 
show  that  by  increase  in  taxation 
or  otherwise,  expense  will  be  put 
upon  him.  See  Buning  v.  St.  Ry. 
Co.,  1  C.  C.  323;  Cincinnati  v.  Alli- 
son, 12  Dec.  376;  Sommers  v.  Cin- 
cinnati, 8  Rec.  612;  and  see  Sloane 
v.  Ry.  Co.,  7  C.  C.  84;  Knorr  v. 
Miller,  5  C.  C.  609 ;  Landis  v.  Darke 
County   (Supreme  Ct.  not  rep.),  32 

B.  313.  Fergus  v.  Columbus,  6  N. 
P.  82. 

Time  of  payment  of  taxes  is  not 
material  in  determining  whether  the 
plaintiff  is  a  taxpayer.  State  ex 
rel.  v.  Taylor,  16  Dec.  66. 

Motive  of  taxpayer  in  bringing 
the  suit  has  been  held  to  be  imma- 
terial. Peppard  v.  Cincinnati,  6  N. 
P.    57;    Raynolds   v.    Cleveland,    24 

C.  C.  215;  2  C.  C.  (N.  S.)  139. 
But  see  contra,  Gallagher  v.  John- 
son, 31  B.  24;  Ampt  v.  Cincinnati, 
2  N.  P.  (N.  S.)  489;  15  Dec.  237. 
And  see  also  Brown  v.  Toledo,  10 
C.  C.  642,  645;  Johnson  v.  Farley, 
8  N.  P.  498;  Fergus  v.  Columbus, 
C  N.  P.  82.  However,  in  McClain 
v.  McKisson,  15  C.  C.  517  (affirm- 
ed 54  O.  S.  673)  it  was  held  that 
the  fact  that  the  taxpayer  was  to  be 
indemnified  for  his  expenses  by  a 
beneficiary  of  the  action,  viz.:  a 
lower  bidder,  would  not  defeat  the 
right  to  sue,  the  taxpayer  desiring 
for  his  own  part  to  bring  the  suit. 
But  see  Vadakin  v.  Crilly,  7  C.  C, 
(N.  S.)  341   (aff'd  73  O.  S.  380). 

Non  resident  taxpayer. — A  tax- 
payer, though  a  non-resident,  may 
sue  under  §§  1777  and  1778  R.  8. 
McClain  v.  McKisson,  15  C.  C.  517 ; 
(affirmed,  54  0.  S.  673). 


Prosecuting  error.  —  Taxpayer 
may,  upon  refusal  of  solicitor,  after 
request,  in  case  brought  under  § 
1777,  prosecute  error  himself.  The 
right  to  do  so  is  within  the  spirit 
of  §§  1777  and  1778.  Pugh  v.  Elec- 
tric Light  Co.,  19  C.  C.  594. 

Pleading  and  practice. — Charac- 
ter of  Petition. —  The  action  must 
be  brought  by  the  taxpayer  for  the 
use  of  the  municipal  corporation 
and  not  in  his  own  behalf  as  tax- 
payer. Hensly  v.  Hamilton,  3  C. 
C.    201;    Wood    v.    Pleasant    Ridge, 

12  C.  C.  177;  Hallock  v.  Columbus, 

13  Dec.  488;  1  N.  P.  (N.  S.)  205; 
and  this  is  so  when  the  solicitor 
brings  the  suit  for  the  taxpayer. 
Miller  v.  Pearce,  2  C.  S.  C.  R.  44,  51. 

Capacity  of  plaintiff  to  sue  in  a 
taxpayer's  action  must  appear  in 
the  petition,  and  a  mere  allegation 
that  he  is  a  resident  and  taxpayer 
of  the  municipality  without  aver- 
ring that  the  suit  is  brought  on  be- 
half of  the  corporation  is  bad  on 
demurrer;  but  this  omission  may  be 
remedied  by  amendment  by  inter- 
lineation. State  v.  Hinkle,  13  Dec. 
165;  Shaw  v.  Jones,  4  N.  P.  372. 
But  the  caption  of  the  petition  need 
not  show  that  plaintiff  is  a  tax- 
payer. Ampt  v.  Cincinnati,  5  N. 
P.  98. 

Where  an  injunction  is  brought  to 
prevent  the  carrying  out  of  the  ob- 
ject of  legislation  on  the  ground 
that  the  legislation  was  not  enact- 
ed in  good  faith,  it  is  not  sufficient 
to  aver  that  trading  of  votes  and 
persuasion  of  one  member  induced 
others  to  vote  as  they  did.  Mills 
v.  Norwood,  26  B.  348. 

A  mere  averment  that  a  certain 
bidder  for  a  municipal  contract  was 
the  lowest  and  that  a  certain 
other  bidder  was  not  the  lowest 
and  that  the  contract  was  awarded 
to  the  latter,  does  not,  standing 
alone,  state  a  cause  of  action.  Cop- 
pin  v.  Herrmann,  7  N.  P.  528 
(affirmed,  63  O.  S.  572). 

Plaintiff    in    an    action    in    man- 


Code  §  137]       ORGANIZATION    OF    CITIES.      SOLICITOR. 


347 


damus  to  compel  the  performance 
of  a  public  duty  is  not  required  to 
plead  or  prove  more  than  that  the 
defendant  officer  is  refusing  to  dis- 
charge a  duty  imposed  upon  him 
by  law.  State  v.  Hinkle,  13  Dec. 
165. 

Petition  asking  court  to  restrain 
alleged  illegal  payments  to  a  water 
company,  when  raises  issue  of  va- 
lidity of  contract  with  such  com- 
pany, see  Defiance  v.  Council,  23 
C.  C.  96  (reversed  other  grounds, 
68  O.  S.  520). 

Demurrer  to  petition  on  ground 
that  plaintiff  has  not  capacity  to 
maintain  the  action,  raises  the  ques- 
tion as  to  whether  the  action  comes 
within  scope  of  sections  under  which 
it  is  brought.  Nicholson  v.  Maile, 
15  Dec.  682;  3  N.  P.  (fc.  6.)  201. 

Where  it  is  shown  that  the  injury 
complained  of  is  not  threatened,  in- 
junction will  not  lie.  Fritter  v. 
Bohl,  2  N.  P.   (N.  S.)    365. 

Parties.  —  Two  taxpayers  may 
join  in  the  same  suit  for  injunc- 
tion. Mathers  v.  Cincinnati,  3  B. 
551. 

The  city  and  not  council  or  offi- 
cers should  be  made  defendant  in 
an  action  to  enforce  the  duty  of 
council  or  other  boards  to  keep  the 
streets  free  from  obstruction.  Her- 
rick  v.  Cleveland,  7  C.  C.  470. 

City  need  not  be  made  a  party 
where  the  action  is  to  enjoin  award- 
ing the  grant  of  a  street  railway 
route  to  one  not  the  lowest  bidder. 


Knorr  v.  Miller,  25  B.  128;  27  B. 
64. 

A  successful  bidder  who  received 
the  award  sought  to  be  enjoined, 
should  be  made  a  party  defendant. 
Fergus  v.  Columbus,  6  N.  P.  82. 

So,  a  company  claiming  under  the 
grant  or  ordinance  sought  to  be  en- 
joined should  be  made  a  party. 
Ampt  v.  Cincinnati,  6  N.  P.  401. 

Situs. — Where  a  municipality  is 
situated  in  two  counties  local  ac- 
tions must  be  brought  in  the  county 
where  its  municipal  officers  and  gov- 
ernment are  located.  Fostoria  v. 
Fox,  60  O.  S.  340. 

(3)  Request  to  solicitor. — Tax- 
payer cannot  sue  until  he  has  re- 
quested the  solicitor  to  sue  and  the 
solicitor  has  refused.  Findlay  Gas 
Light  Co.  v.  Findlay,  2  C.  C.  237. 
Request  must  be  made,  even  though 
it  would  probably  be  futile.  lb. 
And  though  the  suit  is  to  enjoin  an 
act  wholly  beyond  the  power  of  the 
municipality.     lb. 

Request  by  another  taxpayer  af- 
ter suit  brought,  will  not  be  suffi- 
cient,   lb. 

The  petition  should  show  request 
to  solicitor  and  his  refusal,  but 
omission  may  be  cured  by  amend- 
ment. Brown  v.  Toledo,  10  C.  & 
642. 

As  to  length  of  time  solicitor  may 
hold  request  without  response  be- 
fore it  can  be  said  he  has  neglected 
to  act,  see  Ampt  v.  Cincinnati,  2 
N.  P.  (N.  S.)  489;  15  Dec.  237. 


Sec.  1779  R.  S.  [Duty  of  court;  costs.]1  If  the  court  hearing 
such  case  is  satisfied  that  such  taxpayer  had  good  cause  to  be- 
lieve that  his  allegations  were  well  founded,  or  if  the  same  is 
sufficient  in  law,  it  shall  make  such  order  as  the  equity  and 
justice  of  the  case  demand ;  2  and  in  such  case  the  taxpayer 
shall  be  allowed  his  costs ;  provided  that  if  judgment  is  finally 
ordered  in  favor  of  such  taxpayer  he  may  be  allowed  as  part  oi 
the  costs  a  reasonable  compensation  for  his  attorney.3  [95  v. 
31,7;  66  v.  175,  §  161;  (S.  &  C.  1559).] 


(1)   Section   given  as  amended 

in  95  O.  L.   317.     See  note    (1)    to 
§  1778  R.  S.,  p.  343. 


(2)  Decree. —  Under  the  power 
to  make  such  order  as  equity  de- 
mands,  the    court   cannot   annex  a 


348 


THE    OHIO    MUNICIPAL    CODE.  [Code    §     13' 


taxpayer  affects  the  question  of  his 
rights  to  costs  and  attorney's  fees, 
see  Brown  v.  Toledo,  10  C.  C.  642; 
Peppard  v.  Cincinnati,  6  N.  P.  57. 

Attorney's  fees. —  Under  former 
§  1779,  before  amendment  in  95  O. 
L.  317,  the  taxpayer  was  entitled  to 
his  costs  and  compensation  to  his 
attorney  if  he  had  good  cause  to 
believe  his  allegations  were  well- 
founded  or  if  the  same  were  in 
fact  sufficient.  The  taxpayer  may 
now  be  allowed  attorney's  fees  only 
in  case  final  judgment  is  rendered 
in  his  favor. 

Tn  villages  where  there  is  no  vil- 
lage solicitor,  a  taxpayer  bringing 
an  action  under  §§  1777  and  1778  is 
not  entitled  to  have  attorney's  fees 
included  in  the  costs  allowed  him. 
Kissell  v.  Columbus  Grove,  34  B. 
50;  53  O.  S.  650;  Brundige  v.  Ash- 
ley, 62  O.  S.  526. 

The  amount  of  attorney's  fees 
allowed,  should  be  measured  by 
what  public  officers  receive,  rather 
than  by  what  an  attorney  in  private 
practice  would  receive  for  the  same 
service.  Guckenberger  v.  Dexter,  18 
C.  C.  244. 

Sec.  1780  U.S.  [Annual  report.]  He  shall  make  a  report 
annually  to  the  council,  at  their  first  regular  meeting  in  April, 
of  the  business  of  his  office,  and  the  moneys  by  him  collected, 
during  the  year  preceding  the  first  day  of  April,  and  such  other 
matters  as  he  may  deem  proper,  in  order  to  promote  the  good 
government  and  welfare  of  the  corporation.  [66  v.  175,  § 
162.] 

Sec.  1813  R.  S.  [Prosecuting  attorney  and  assistants.]  The 
prosecuting  attorney  of  the  police  court  shall  prosecute  all 
cases  brought  before  such  court,  and  perform  the  same  duties, 
as  far  as  the  same  are  applicable  to  the  police  court,  as  re- 
quired of  the  prosecuting  attorney  of  the  county;  and  except 
in  cities  of  the  first  grade  of  the  first  class,  the  prosecuting  at- 
torney may  appoint  not  to  exceed  three -assistants  who  shall  be 
assistant  prosecuting  attorneys  of  the  police  court,  and  per- 
form the  same  duties,  so  far  as  applicable  to  the  police  court 
as  performed  by  the  prosecuting  attorney  of  the  police  court 


condition  to  its  decree,  enjoining  an 
illegal  award,  that  the  city  pay  for 
work  already  done.  Hertenstein  v. 
Herrmann,  6  N.  P.  93,  99. 

This  section  contemplates  that  the 
court  is  not  to  be  bound  by  hard 
and  fast  rules,  and  a  taxpayer  is 
not  entitled  to  relief  where  he  seeks 
to  compel  the  city  to  do  what  is 
manifestly  inequitable  and  unjust. 
Friedman  v.  Cincinnati,  13  Dec.  404; 
Fergus  v.  Columbus,  6  N.  P.  82,  93. 

Injunction     pendente     lite     not 

granted  where  exercise  of  power  by 
company  under  ordinance  will  be 
beneficial  to  city  and  no  rights  will 
be  prejudiced  thereby.  Ross  v.  Co- 
lumbus, 8  N.  P.   420. 

(3)  Costs  and  fees. —  If  suit 
was  founded  on  defects  and  irreg- 
ularities that  might  reasonably 
seem  to  justify  it,  court  may  appor- 
tion costs.  Sloane  v.  People's  Elec- 
tric Ry.,  7  C.  C.  84,  94. 

The  taxpayer  must  show  reasona- 
ble cause  for  suit,  to  claim  costs. 
Miller  v.  Pearce,  2  C.  S.   C.  R.  44. 

As  to  whether  the  motive  of  the 


Code  §137]     ORGANIZATION    OF    CITIES.    SOLICITOR.  849 

The  persons  thus  appointed  shall  be  subject  to  the  approval  of 
the  city  council  and  such  assistants  shall  receive  for  their  ser- 
vices in  city  cases  such  salaries  as  the  council  may  prescribe,  and 
the  county  commissioners  may  allow  such  further  compensation 
as  they  deem  proper.1  [95  v.  86;  84  v.  26,«28;  66  v.  179,  § 
191;   (S.  &  C.  1536).] 

( 1 )   Section  as  amended. —  This  an  exception  in  case  of  a  grade  and 

section  is  given  as  amended  April  2,  class  of  cities,  see  note  "  Grades  and 

1902,  as  under   §   212  of  the  Code,  classes    under   new   Code,"   under    § 

when  a   section  is  incorporated,   an  1599  R.  S.,  page  31 ;  and  see  State 

amendment  to  it  continues  in  effect,  ex  rel.  v.  Baker,  55  O.  S.  1,  and  see 

though   not  mentioned.     But  as   to  note  to  §  190  of  the  Code, 
the   effect  of  the  provision  making 


Sec.  1815  R.  S.  [Inability  or  absence  of  prosecuting  attorney; 
substitute.]  When  there  is  a  temporary  inability  or  absence  of 
such  prosecuting  attorney,  or  a  vacancy  of  the  office  by  resigna- 
tion, death,  or  otherwise,  the  judge  of  the  police  court,  or  if 
there  be  more  than  one  judge  of  said  court,  then  the  judges 
thereof,  shall  appoint  some  competent  member  of  the  bar  to  per- 
form the  duties  of  the  office,1  such  appointee  shall  act  until  the 
removal  of  the  inability,  or  the  return  of  such  prosecuting  attor- 
ney, and  in  case  of  vacancy  until  his  successor  shall  be  elected  at 
the  next  annual  municipal  election  and  has  duly  qualified.  Said 
appointee  shall  qualify  in  the  same  manner,  shall  have  the 
same  power  and  authority  to  discharge  the  same  duties,  be  sub- 
ject to  the  same  liabilities,  and  shall  receive  the  same  salary  as 
the  officer  whom  said  appointee  secceeds  [succeeds]  ;  but  in 
case  of  inability  or  temporary  absence  of  such  prosecutor  the 
judge  may  deduct  such  amount  from  the  salary  of  such  prose- 
cuting attorney.  [94  v.  69;  Kev.  Stat,  of  1880;  66  v.  179,  § 
193.] 


( 1 )  Defective  appointment.  —  prosecuting  attorney  is  absent,  as  a 
Where  the  judge  has  erred  in  mak-  condition  precedent  to  appointment 
ing  the  appointment  of  an  acting  of  an  acting  prosecutor,  is  not  con- 
prosecutor,  such  appointee  is  never-  elusive  of  the  fact,  in  a  suit  by  the 
theless,  a  de  facto  officer.  Ermston  appointee  for  compensation  for  his 
v.  Cincinnati,  7  N.  P.  635.  services.     lb. 

The  finding  of  the  judge  that  the 


350  the  ohio  municipal  code.     [Code  §§  138-140 

(b)   department  of  public  service. 

(1)   General  Administrative  Powers. 

Sec.  138.     [Department  of  public  service;  directors:  number, 

election,  term,  qualifications,  etc.]  *     In  every  city  there  shall  be 

a  department  of  public  service  which  shall  be  administered  by 

three  or  five  directors  and  the  number  of  said  directors  shall 

be  fixed  by  ordinance  or  resolution  of  council.2     Such  directors 

shall  organize  as  a  board  to  be  known  as  the  "  board  of  public 

service.' '    Directors  of  public  service  shall  be  elected  for  a  term. 

of  two  years  and  shall  serve  until  their  successors  are  elected 

and  qualified.     They  shall  be  electors  of  the  city.     They  shall 

make  their  own  rules  and  all  regulations  for  the  administration 

of  affairs  under  their  supervision. 

(1)  Old  sections. — Compare  sec-  §1545-270    (board  of  city  commis- 

tions  relating  to  "city  commission-  sioners,    Akron    and    Youngstown)  ; 

ers"  in  Code  of  1852  (50  O.  L.  249)  §  1707^-2    et  seq.    (board   of   public 

and  to  "board  of  improvements"  in  affairs,   Portsmouth)  ;    89   O.  L.   24 

Code  of  1869    (66  O.  L.  233);  also  (board  of  improvements,  Ravenna), 

§  2186  R.  S.  et  seq.  and  §(1545-35)  and  other  similar  acts,  all  repealed. 

et   seq.    R.    S.    (director   of   public  (2)     Form     of    ordinance     or 

works,  Cleveland);    §(1545-143)    et  resolution  fixing  the  number  of  di- 

seq.  R.  S.  (director  of  public  works,  rectors   of   public   service,   see   that 

Columbus);   §(1545-240)   et  seq.  R.  given  under   §117   of  the  Code,  p. 

S.    (board  of  public  affairs,  Spring-  307. 

field);   §(1545-296)    R.  S.    (depart-  Constitutionality  of  provision 

ments  of  public   improvements  and  authorizing    council     to    determine 

public  works,  Hamilton  >  ;  §2205  et  number  of  directors  of  public  serv- 

seq.  R.  S.    (board  of  public  service,  ice,  affirmed.     Zumstein  v.  Mullen, 

Cincinnati);      §    1707d-l      et     seq.  67  O.  S.  38. 
(board    of    city    affairs,    Dayton) ; 

Sec.  139.  [General  powers  of  board.]  3  The  directors  of  pub- 
lic service  shall  be  the  chief  administrative  authority  of  the  city, 
and  shall  manage  and  supervise  all  public  works  and  all  pub- 
lic institutions,  except  whene  otherwise  provided  in  this  act. 

( 1 )   Old  sections.— Compare  old       (1545-296)      R.     S.      (Hamilton); 


§§  (1545-37)  R.  S.  (Cleveland) 
(1545-145)  R.  S.  (Columbus) 
(1545-247)     R.     S.     (Springfield) 


(2212)      R.     S.      (Cincinnati)     and 
see  §  2192  R.  S.,  all  repealed. 


Sec.  140.     [Powers  and  duties.]  1      The   directors    of   public 
service  shall  supervise  the  improvement  and  repair  of  streets, 


Code  §141]      cities,  dep't  of  public  service.  351 

avenues,  alleys,  lands,  lanes,  squares,  wharves,  docks,  land- 
ings, market  houses,  bridges,  viaducts,  aqueducts,  sidewalks, 
sewers,  drains,  ditches,  culverts,  ship  channels,  streams  and  wa- 
ter courses;  the  lighting,  sprinkling  and  cleaning  of  all  pub- 
lic places,  and  the  construction  of  all  public  improvements  and 
public  works,  except  as  otherwise  provided  in  this  act.2 

( 1 )  Old  sections. —  See  note  un-  The  powers  of  such  a  board  as  this, 
der   §    139,  supra,  and  see    §§   2207      as  prescribed  by  the  statutory  pro- 

8         '       „     ,     .  ,    ,  visions,  are  to  be  strictly  construed, 

and  2187  R.   S.,  both  repealed.  It  has  only  such  powers  as  are  ex- 

(2)  Council  has  control  and  pressly  conferred  and  such  as  may 
care  of  the  streets,  while  the  board      arise  by  fair  implication  "because  es- 

of  public  service  supervises  the  im-  sential    to_,cJr  *    out,  the    *XP£*S 
F                             F  powers.      State   ex  rel.   v.    Boyden, 
provement  of  streets.     See   §   28  of  4  N    p    322.     See  also  as  to  con- 
the  Code.  struction    of    powers    of    municipal 
The  authority  to  make  appropria-  officers,   Bloom  v.   Xenia,    32   O.   S. 
tion  for  improving  streets  is  vested  461;    Ravenna  v.   Penn.   Co.,   45   0. 
in  council,  but  the  supervision  and  S.    118;    Buchanan    Bridge    Co.    v. 
manner  of  doing  the  work  are  with  Campbell,   60  O.   S.  406 ;    Comstock 
the  Board  of  Public  Service.     State  v.   Nelsonville,   61    O.   S.   288;   Lan- 
ex  rel.  v.  Roebuck,  15  Dec.  400.  caster  v.  Miller,  58  O.  S.  558 ;  Wells- 
Powers    strictly    construed.-  ton  v'  MorSan'  65  °'  S'  219' 

Sec.  141.  [Powers  and  duties.]1  The  directors  of  public  ser- 
vice shall  have  the  management  of  all  municipal  water, 
lighting  and  heating  plants,  parks,  baths,  market  houses,  ceme- 
teries, crematories,  sewage  disposal  plants  and  farms,  as  well 
as  all  public  buildings  and  other  property  of  the  corporation 
not  otherwise  provided  for  herein.2 

Said  directors  of  public  service  shall  also  manage  and  con- 
trol all  houses  of  refuge  and  correction,  workhouses,  city  farm 
schools,  infirmaries,  hospitals,  pest  houses  and  all  other  chari- 
table and  reformatory  institutions  now  or  hereafter  established 
or  maintained  by  any  city;  and  in  the  control  and  supervision 
of  such  institutions  said  directors  of  public  service  shall  be  gov- 
erned by  the  provisions,  so  far  as  the  same  are  consistent  with 
this  act,  of  sections  2050,  2051,  2052,  2053,  2053-1,  2053-2, 
2054,  2055,  2056,  2057,  2058,  2059,  2060,  2061,  2062,  2063, 
2064,  2065,  2066,  2067,  2068,  2069,  2070,  2071,  2072,  2073, 
2074,  2075,  2076,  2077,  2078,  2081,  2092,  2093,  2094,  2099, 


352  the  ohio  municipal  code.  [Code  §141 

2100,  2102,  2105,  2106,  2165,  2168,  2169,  2171  and  2172  of 
the  Kevised  Statutes  of  Ohio. 

(1)  Old  sections. —  See  notes  to  parks,  see  Cincinnati  v.  University, 
§§139  and  140,  supra.  13  Dec.  284. 

(2)  Scope     of    power. —  As     to 

(£)  Houses  of  Refuge.1 

Sec.  2050  It.  S.  [When  infants  received.]  The  board  2  may, 
at  its  discretion,  receive  into  such  institution 3  infants  under 
the  age  of  sixteen  years,  committed  to  their  custody  in  either 
of  the  following  modes,  to  wit : 

1.  Infants  committed  by  the  mayor  of  the  corporation,  or  any 
judge  or  justice  of  the  peace  of  the  county,  on  complaint  and 
due  proof  by  the  parent,  guardian,  or  next  friend  of  such  in- 
fant, that,  by  reason  of  incorrigible  or  vicious  conduct,  such 
infant  has  rendered  his  control  beyond  the  power  of  such 
parent,  guardian,  or  next  friend,  and  made  it  manifestly  requi- 
site that,  from  regard  to  the  future  welfare  of  such  infant,  and 
for  the  protection  of  society,  he  should  be  placed  under  the 
guardianship  of  the  board  of  directors  of  such  house  of  refuge 
and  correction. 

2.  Infants  committed  by  the  authorities  aforesaid,  where 
complaint  and  due  proof  have  been  made  that  such  infant  is  a 
proper  subject  for  the  guardianship  of  the  directors  of  such 
institution,  in  consequence  of  vagrancy,  or  of  incorrigible  or 
vicious  conduct,  and  that  from  the  moral  depravity  of  the 
parent,  guardian,  or  next  friend,  in  whose  custody  such  infant 
may  be,  or  other  cause,  such  parent,  guardian,  or  next  friend 
is  incapable  or  unwilling  to  exercise  the  proper  care  and  dis- 
cipline over  such  incorrigible  or  vicious  infant. 

3.  Infants  who  are  without  a  suitable  home  and  adequate 
means  of  obtaining  an  honest  living,  or  who  are  in  danger  of 
being  brought  up  to  lead  an  idle  or  immoral  life,  may  be 
committed  to  the  guardianship  of  the  directors  of  such  insti- 
tution, by  the  trustees  of  any  township  within  the  county  in 
which  such  institution  is  situated,  or  by  the  mother,  when  the 
father  is  dead,  or  has  abandoned  his  family,  or  does  not  pro- 
vide for  their  support,  or  is  an  habitual  drunkard.4  [66  v. 
189,  §  238.] 

(1)   Former  provisions  relating  except  £g  2081  and  2090,  are  repealed. 

to   houses    of   refuge,    embraced    §§  §  2081  is  re-enacted  in  §  141  of  the 

2031   to    (2090-7)    R.   S.,   inclusive,  Code  and  §  2090  is  made  ineffective 

beina  subdivisions  I  and  II  of  Chap-  by  repeal  of  other  sections. 

6,   Div.    5,   Title   12.     Of  these,    §§  Sections  2083  to    (2090-7)    R.  S., 

2031    to  2049  R.    8.,   inclusive,  and  inclusive,    were    provisions   relating 
§§  2079  to  (2090-7)  R.  S.,  inclusive. 


Code  §141]      cities,  dep't  or  public  service. 


353 


to  houses  of  refuge  "  heretofore  es- 
tablished," meaning  before  May  7, 
1869,  and  applied  only  to  such  as 
were  established  before  that  date. 
See  House  of  Refuge  v.  Ryan,  37  0. 
S.    197. 

Now,  however,  the  statutes  re- 
enacted  in  the  Code  will  apply  to 
all  houses  of  refuge. 

Power  to  establish  houses  of 
refuge  and  to  maintain  them  wa3 
formerly  given  in  §  2031  R.  S.,  re- 
pealed. This  power  is  now  con- 
ferred upon  all  municipalities  in 
paragraph  20  of  §  7  of  the  Code, 
page  59. 

(2)  Board,  referred  to  here,  was, 
under  the  old  sections,  the  "  board 
of  directors  of  the  house  of  refuge 
and  correction "  mentioned  in  old 
section  2032  R.  S.,  repealed.  But 
as  the  control  of  houses  of  refuge  is 
now  given  to  the  board  of  public 
service  (§  141,  supra)  the  word 
"  board  "  or  the  word  "  directors  " 
where  either  occurs  in  this  or  sub- 
sequent sections  on  this  subject, 
must  be  taken  to  refer  to  the  board 
or  directors  of  public  service. 


( 3 )  Institution  here  means  house 
of  refuge.  This  is  made  plain  by 
the  old  sections  (now  repealed) 
preceding  §  2050  R.  S. 

(4)  Validity. —  As  to  the  consti- 
tutionality of  a  statute  such  as 
this,  see  Prescott  v.  State,  19  O.  S. 
184;  House  of  Refuge  v.  Ryan,  37 
O.   S.    197,  204. 

Support  of  infants. —  Infants 
committed  to  a  house  of  refuge  and 
correction  under  §  2050  R.  S.  for 
"  incorrigible  conduct,"  are  not 
committed  "  for  offenses  against  a 
law  of  the  State  "  within  the  mean- 
ing of  §  2071  R.  S.,  infra,  and 
hence  they  must  be  supported  as 
provided  in  §  2072  R.  S.,  infra, 
and  not  by  the  county.  State  v. 
Schlatterbeck,  39  O.  S.  268. 

Construction.— §  2050  R.  S.  pro- 
vides that  the  board  may  at  its 
discretion,  receive  infants  commit- 
ted for  incorrigible  conduct,  etc.; 
§§  2051,  2052  and  2053  R.  S.  infra, 
provide  for  commitment  of  such  in- 
fants, convicted  of  crimes  and  of- 
fenses. House  of  Refuge  v.  Ryan, 
37  O.  S.  197. 


Sec.  2051 E.  S.     [Infants   may  be   confined  after  conviction.] 

An  infant  under  the  age  of  sixteen  years,  convicted  of  a  mis- 
demeanor, or  an  offense  punishable  by  imprisonment  under  an 
ordinance  of  the  city,  or  who  has  been  ordered  to  be  commit- 
ted as  prescribed  in  the  last  section,  may  be  confined  in  such 
house  of  refuge  and  correction,  under  such  rules  and  regulations 
as  the  directors  *  may  prescribe ;  and  the  directors  shall  re- 
ceive and  take  charge  of  any  children  committed  to  their  cus- 
tody by  any  court  or  officer,  under  a  law  of  the  stete.  [67  v. 
75,  §  239;  (S.  &  C.  689).] 


( 1 )   Directors  here  must  be  taken 
to    mean    the    directors    of    public 


service.     See     note 
2050  R.  S.,  supra. 


(2)     under     § 


Sec,  2052  R.  S.     [When  infant  may  be  put  to  hard  labor.]     A 

minor,  over  the  age  of  sixteen  years,  convicted  of  a  violation  of 
any  ordinance,  and  liable  to  be  punished  therefor  by  imprison- 


854  the  ohio  municipal  code.  [Code  §141 

ment,  or  who  may  be  liable  to  imprisonment  for  neglect  or 
refusal  to  pay  a  fine  imposed  for  the  violation  of  an  ordinance, 
may,  in  lieu  thereof,  be  committed  to  the  house  of  refuge 
and  correction,  and  put  to  hard  labor,  in  such  manner  as 
may  be  prescribed  by  ordinance  of  the  council.  [66  v.  190, 
§  240.] 

Sec.  2053 U.S.  [Confinement  of  infants  until  of  age.]  Any 
infant,  under  the  age  of  sixteen  years,  who  may  be  liable  to 
confinement  in  the  jail  in  any  county  in  which  a  house  of 
refuge  and  correction  is  situated,  or  in  the  penitentiary  of  the 
state  from  such  county,  or  at  the  reform  farm,  may,  at  the 
discretion  of  the  court,  or  magistrate,  giving  sentence,  be 
placed  in  such  institution  until  of  legal  age,  under  the  exclu- 
sive control  and  "guardianship  of  the  directors  thereof.  \_QQ 
v.   190,   §  241.] 

Sec.  2053 — 1  R.  S.  [Authority  to  commit  children  to  houses  of 
refuge;  proviso.]  All  courts  or  officers,  who,  by  virtue  of  law 
now  in  force  or  hereafter  to  be  enacted,  have  authority  to  com- 
mit infants  to  the  care  and  guardianship  of  boards  of  directors 
of  houses  of  refuge,  or  to  the  board  of  commissioners  for  re- 
form schools,  shall  have  the  same  power  to  commit  such  infants 
to  the  care  and  guardianship  of  the  board  of  directors  1  of 
any  house  of  refuge  and  correction  in  the  state  of  Ohio,  oi> 
ganized  and  erected  by  a  municipal  corporation  with  which  the 
state  of  Ohio  shall  have  made  arrangements  for  the  custody  and 
care  of  such  infants,  that  they  now  have  to  commit  such  youth, 
either  to  the  custody  of  the  board  of  commissioners  of  reform 
schools,  or  the  directors  of  any  house  of  refuge,  whether  such 
house  of  refuge  and  correction  be  located  within  the  county 
where  such  commitment  is  made  or  not;  provided,  that  all 
youths  committed  to  any  house  of  refuge  under  the  provisions 
of  this  act  who  shall  be,  or  whose  parents  or  guardians  shall 
be  at  the  time  of  such  commitment  resident  of  any  city  or 
municipal  corporation  where  such  house  of  refuge  is  located, 
shall  be  kept  and  maintained  at  the  expense  of  such  city  or 
municipal  corporation.      [73  v.  143.] 

(1)  See  note  (2)   to  §  2050  E,.  S.,  supra. 

Sec.  2053 — 2  It.  S.  [Boards  in  municipalities  may  receive 
children.]  It  shall  be  lawful  for  the  board  of  directors  1  of 
any  house  of  refuge  and  correction  situate  in  any  municipal 
corporation,  with  which  the  state  of  Ohio  shall  have  made 
arrangements  for  the  custody  and  guardianship  of  infants  un- 


Code  §141]      cities,  dep't  of  public  service.  355 

der  the  age  of  sixteen  years,  as  provided  in  the  preceding  sec- 
tion, to  receive  into  their  care  and  guardianship  all  such  in- 
fants committed  to  their  custody.      [73  v.  143.] 

(1)   See  note   (2)   to  §  2050  R.  S.,  supra. 

Sec.  2054  R.  S.     [Commitment    on    recommendation    of    grand 

jury.]  If  accusation  of  the  commission  of  a  crime  is  made 
against  an  infant  under  the  age  of  sixteen  years,  before  the 
grand  jury  of  the  county  in  which  such  house  of  refuge  and 
correction  is  situated,  and  the  charge  appears  to  be  supported 
by  evidence  sufficient  to  put  the  accused  upon  trial,  the  grand 
jury  may,  in  its  discretion,  instead  of  finding  an  indictment 
against  the  accused,  return  to  the  court  that  it  appears  to 
them  that  the  accused  is  a  suitable  person  to  be  committed  to 
the  guardianship  of  the  directors  of  the  house  of  refuge  and 
correction,  and  the  court  shall  thereupon,  on  notice  to  the  minor, 
and  an  opportunity  to  be  heard,  but  without  a  jury,  order  such 
commitment1       [66  v.  190,  §  242;  (S.  &  C.  690).] 

(1)  Validity. — This  section  was  Art.  I.  of  the  Constitution.  Pres- 
held  not  repugnant  to   §  5  or   §  10,       cott  v.  State,  19  O.  S.   184. 

Sec.  2055  R.  S.  [Commitment  by  court  in  certain  cases.]  If 
an  infant,  under  the  age  of  sixteen  years,  be  arraigned  for 
trial  in  a  court  having  criminal  jurisdiction  in  a  county  in 
which  a  house  of  refuge  and  correction  is  situated,  on  a  charge 
of  a  violation  of  any  criminal  law  of  this  state,  or  ordinance 
of  the  corporation,  the  judge  may,  with  the  consent  of  the 
accused,  arrest,  at  any  stage  of  the  cause,  further  proceedings 
upon  the  part  of  the  prosecution,  and  commit  the  accused  to 
the  guardianship  of  the  directors  *  of  such  institution.  [6Q 
v.  190,  §  243:  ( S.  &  C.  690).] 

(1)    See  note  (2)  to  §  2050  R.  S.,  supra. 

Sec.  2056  R.  S.  [Infants  entitled  to  private  examination  and 
trial.]  Infants  under  the  age  of  sixteen  years  who  are  accused 
of  an  offen3e  punishable  by  imprisonment  in  a  county  in  which 
a  house  of  refuge  and  correction  is  situated,  shall  be  entitled 
to  a  private  examination  and  trial,  to  which  only  the  parties 
shall  be  admitted,  unless  one  of  the  parents,  the  guardian,  or 
other  legal  representative  demands  a  public  trial,  in  which 
cqse  all  proceedings  shall  be  in  the  usual  form.  [66  v.  191, 
§  244;  (S.  &C.  690).] 


356  the  ohio  municipal  code.  [Code  §141 

Sec.  2057  E.  S.     [Infants  placed  in  refuge  instead  of  jail.]     An 

infant  under  the  age  of  sixteen  years  who  is  committed  for 
trial,  or  as  a  witness,  in  a  county  in  which  a  house  of  refuge 
and  correction  is  situated,  shall  be  placed  in  such  institution 
subject  to  the  order  of  the  court  making  such  commitment, 
and  in  no  case  in  the  county  jail.  [66  v.  191,  §  245;  (S.  & 
C.  690.).] 

Sec.  2058  R.  S.  [Disposition  when  refuge  full.]  If  at  any 
time  a  house  of  refuge  and  correction  have  as  many  infants 
under  its  charge  as  can  be  conveniently  accommodated  therein, 
or  as  many  as  the  funds  of  such  institution  are  adequate  to 
maintain,  the  board  *  shall  not  be  required  to  receive  other 
infants,  but  shall  order  their  chief  officer  to  return  that  fact 
to  any  magistrate,  court  or  person  authorized  to  commit,  who 
shall  have  sent  an  infant  to  such  institution ;  and  thereupon  the 
case  of  such  infant  shall  be  disposed  of  as  if  this  chapter 
had  not  been  enacted,  and  as  if  no  proceedings  had  taken 
place  under  it.     ]6Q  v.  191,  §  246;  (S.  &  C.  690).] 

(1)    See  note   (2)  to  §  2050  R.  S.,  supra. 

Sec.  2059  R.  S.  [Statement  of  age,  residence,  cause,  etc.,  to  be 
furnished.]  In  all  cases  where  an  infant  is  committed  to  the 
instruction  and  discipline  of  a  house  of  refuge  and  correction, 
under  the  guardianship  of  the  directors  *  thereof,  the  court 
or  judge  ordering  such  commitment  shall,  at  the  same  time, 
furnish  to  the  directors  or  officers  of  such  institution  a  true 
statement,  in  writing,  of  the  age  of  such  infant,  and  the  rea- 
son for  such  commitment;  and  until  such  statement  is  fur- 
nished, the  directors  or  officers  aforesaid  may  decline  to  receive 
such  infant.      [6Q  v.  191,  §  247;  (S.  &  C.  690).] 

(1)   See  note  (2)  to  §  2050  R.  S.,  supra. 

Sec.  2060  R.  S.     [What  record  of  commitment  shall  contain.] 

In  all  cases  where  the  commitment  is  ordered  by  an  official 
person  whose  proceedings  are  usually  evidenced  by  a  record,  or 
where  the  occasion  of  the  commitment  is*  a  criminal  charge 
against  the  infant,  no  other  record  shall  be  made,  unless  de- 
manded by  the  infant,  or  his  parents,  or  guardian,  than  that, 
in  substance,  such  infant  (naming  him),  who,  on  a  day  there- 
in named,  was  of  the  age  of <  years,  having  been  br^u^ht 

before  such  court  or  officer,  and  the  court  or  officer  having 
ascertained  by  the  testimony  of  the  witnesses  therein  named. 


Code  §141]  CITIES.    DEP?T    OF    PUBLIC    SERVICE.  357 

that  such  infant  was  a  suitable  person  to  be  committed  to  the 
discipline  and  instruction  of  the  house  of  refuge  and  correc- 
tion, under  the  guardianship  of  the  directors  thereof,  such  in- 
fant was  so  committed,  and  delivered  to  the  charge  of  such 
directors.      [66  v.  191,  §  248 ;  (S.  &  C.  690).] 

Sec.  2061  R.  S.  [Duration  of  commitment  to  reformatory  insti- 
tution; discharge,  etc.]  No  commitment  of  an  infant  to  a  house 
of  refuge  and  correction  shall  be  for  a  shorter  period  than  'til 
[until]  such  infant  shall  be  reformed  or  attain  the  age  of 
majority  except  in  case  of  infants  committed  to  await  their 
trial,  or  as  witnesses,  and  except  in  such  cases  as  the  board 
may  by  its  general  rules,  provide ;  but  any  infant  by  whomso- 
ever or  for  whatever  cause  committed  may  at  any  time  be 
discharged  upon  order  of  the  board,1  duly  entered  upon  its 
minutes  or  may  by  order  of  the  said  board  duly  entered  upon 
its  minutes,  be  permitted  to  leave  such  institution  until  directed 
to  return  thereto  by  said  board  or  the  superintendent  of  such 
house;  but  said  permission  shall  not  in  any  way  be  construed 
to  be  a  discharge  from  the  said  house  and  from  the  guardianship 
of  the  board  of  directors  thereof.2  [1881,  April  20:  78  v. 
253;  Kev.  Stat.  1880;  66  v.  191,  §  249;  (S.  &  C.  691).] 

(1)  See  note  (2)  to  §  2050  R.  S.,  habeas  corpus.  House  of  Refuge  v. 
supra.  Ryan,  37  O.  S.  197,  201. 

(2)  Validity. —  A  section  provid-  The  father,  if  an  unsuitable  per- 
ing  proceedings  for  and  authorizing  son,  is  not  entitled  to  the  custody 
commitment  of  homeless  children  is  of  the  child,  on  the  hearing  of 
not  repugnant  to  §  14  or  §  16,  Art.  habeas  corpus,  on  the  ground  that 
I  of  the  Constitution  of  Ohio,  as  he  had  no  notice  of  the  proceedings 
the  law  provides  full  remedy  by  under  which  the  child  was  commit- 
ted,    lb. 

Sec.  2062  K.  S.  [How  minors  emploved.]  The  board  1  shall 
have  power  to  place  infants  committed  to  its  care,  during  their 
minority,  at  such  employment  for  account  of  the  institution 
or  otherwise,  and  cause  them  to  be  instructed  in  such  branches 
of  useful  knowledge,  as  may  be  suited  to  their  years  and  capac- 
ities.     [66  v.  192,  §  250;  (S.  &  C.  691).] 

(1)   See  note  (2)  to  §  2050  R.  S.,  supra. 

Sec.  2063  U.S.  [Board  may  bind  them  as  apprentices.]  The 
board  1  shall  have  power,  at  discretion,  to  bind  out  the  saio 
infants  committed  to  its  care,  with  their  consent,  as  appren- 
tices during  their  minority,  to  such  persons  and  at  such  places 


358  the  ohio  municipal  code.  [Code  §141 

to  learn  such  proper  trades  and  employments  as  in  its  judgment 
will  be  most  conducive  to  their  reformation  and  amendment, 
jnd  as  will  tend  to  the  future  benefit  and  advantage  of  such  in- 
fants.     [66  v.  192,  §  251;   (S.  &  C.  691).] 

(1)   See  note  (2)  to  §  2050  R.  S.,  supra. 

Sec.  2064  R.  S.  [Committee  on  indentures.]  The  board  *  shall 
for  such  purpose,  have  power  to  appoint  a  committee  of  one  or 
more  of  its  number,  with  power  to  execute  and  deliver,  on 
behalf  of  the  board,  indentures  of  apprenticeship  for  any  infant 
in  such  institution  whom  it  may  deem  a  proper  person  for 
an  apprenticeship ;  such  indentures  shall  have  the  like  force  and 
effect  as  other  indentures  of  apprenticeship  under  the  laws  of 
Ohio ;  the  indentures  shall  be  filed  and  kept  in  the  office  of  such 
institution,  and  it  shall  not  be  necessary  to  file  or  record  them 
in  any  other  place  or  office.  [66  v.  192,  §  252;  (S.  &  C. 
691).] 

(1)    See  note  (2)  to  §  2050  R.  S.,  supra. 

Sec.  2065  R.  S.     [When  indentures  to  be  canceled.]      In    case 

an  infant  so  apprenticed  prove  untrustworthy  and  unreformed, 
the  board  *  may,  at  its  discretion,  permit  such  infant  to  be  re- 
turned to  such  house  of  refuge  and  correction,  to  be  held  in  the 
same  manner  as  before  such  apprenticeship,  and  may  there- 
upon order  the  indentures  for  such  infant  to  be  canceled.  [66 
v.  192,  §  253;  (S.  &  C.  691).] 

(1)  See  note  (2)  to  §  2050  R.  S.,  supra. 

Sec.  2066  R.  S.  [When  indentured  infant  returned  to  institu- 
tion.] If,  in  the  opinion  of  the  board,1  an  infant  apprenticed 
by  it  has  an  unsuitable  home,  or  if  the  person  to  whom  such 
infant  is  indentured  becomes  unfit  or  incapable  to  properly  raise 
or  take  care  of  such  infant,  the  directors  may,  at  their  discre- 
tion, return  such  inf ai  t  to  the  institution  from  which  it  wa* 
indentured.      [66  v.  192,  §  254;  (S.  &  C.  691).] 

(1)  See  note  (2)  to  §  2050  R.  S.,  supra. 

Sec.  2067  R.  S.  [Arrest  of  fugitives  from  refuge  or  apprentice- 
ship.] A  fugitive  from  a  house  of  refuge  and  correction,  or  a 
fugitive    from   apprenticeship   under  indentures    executed    as 


Code  §141]       cities,  dep't  of  public  service.  359 

above  provided,  may  be  arrested  and  returned  to  such  institu- 
tion by  a  sheriff  or  constable  of  any  county  in  this  state,  or 
police  officer  of  the  corporation,  or  officer  of  such  institution, 
on  the  written  order  of  two  directors  *  of  such  institution,  di- 
rected to  such  officer,  and  may  be  delivered  to  the  custody  of 
such  officer  of  the  house  of  refuge  and  correction  as  the  directors 
may  name.     .[66  v.  192,  §  255;  (S.  &  C.  691).] 

(1)  See  note  (2)  to  §  2050  R.  S.,  supra. 

Sec.  2068  R.  S,  [Stubborn  infant:  how  dealt  with.]  When  an 
infant  is  convicted  of  an  offense  against  the  laws  of  this  state, 
punishable  with  imprisonment  in  the  penitentiary,  or  in  the 
jail  of  the  county  where  such  house  of  refuge  and  correction  is 
situate,  and,  under  existing  laws,  is  sent  to  the  house  of  refuge 
and  correction,  instead  of  the  penitentiary  or  jail,  and  refuses 
to  submit  to  the  rules  of  the  institution,  and  proves  to  be 
stubborn  and  irreclaimable,  in  the  opinion  of  a  majority  of  the 
board,1  such  infant  may,  by  its  order,  be  delivered  into  the 
custody  of  the  sheriff  of  the  county,  with  a  written  statement 
of  the  cause  of  commitment,  and  of  the  conduct  and  character 
of  such  infant,  as  exhibited  in  such  institution,  which  state- 
ment shall  be  prepared  and  signed  by  the  superintendent.  [66 
v.  193  (192),  '§  256.] 

(1)  See  note  (2)  to  §  2050  R.  S.,  supra. 

Sec.  2069  R.  S.  [Sheriff  to  notify  prosecuting  attorney  in  such 
case.]  It  shall  be  the  duty  of  the  sheriff  to  receive  such  in- 
fant into  his  custody,  and  file  the  statement  in  the  office  of  the 
clerk  of  the  Court  of  Common  Pleas,  or  in  the  office  of  the 
clerk  of  the  court  in  which  such  infant  was  tried,  and  to 
notify  the  prosecuting  attorney  of  the  county  thereof.  [66  v. 
193,  §  257.] 

Sec.  2070 U.S.  [Stubborn  infants:  final  disposition.]  The 
prosecuting  attorney  on  receiving  such  notice  shall  cause  such 
infant  to  be  brought  before  the  Court  of  Common  Pleas,  ot 
before  the  court  in  which  such  infant  was  tried,  to  receive  the 
sentence  which  the  court  deems  just,  according  to  the  law,  foi 
the  offense  of  which  such  infant  was  convicted  as  aforesaid. 
[66  v.  193,  §  258.] 

Sec.  2071  R.  S.  [How  expenses  shall  be  paid.]  The  expense 
of  maintaining  infants  committed  to  a  house  of  refuge  and 


360  the  ohio  municipal  code.  [Code  §141 

correction,  by  a  court  or  magistrate  of  the  county  in  which  such 
institution  is  situated,  or  by  the  police  or  other  court  of  the 
corporation,  for  offenses  against  a  law  of  the  state,  or  for  trial, 
or  as  a  witness,  shall  be  paid  by  the  county;  and  the  expense 
of  infants  committed  by  [township  trustees  shall  be  paid  by  the 
township,  and  of  those  committed  by]  parents  and  guardians 
shall  be  paid  by  them,  except  in  cases  where  the  board  1  other- 
wise determine;  all  which  expense  shall  be  ascertained  and 
fixed  by  the  board.2      [66  v.  193,  §  259  ;  (S.  &  C.  691).] 

(1)  gee  note  (2)  to  §  2050  R.  S.,  (2)   Support    of     infants.— See 

supra.  note    (4)   to  §  2050  R.  S.  supra. 

Sec.  2072 R.  S.  [Deficiency:  how  raised.]  The  expense  of 
maintaining  and  administering  the  affairs  of  houses  of  refuge 
and  correction,  above  the  receipts  thereof,  shall  be  audited  and 
paid,  from  time  to  time,  by  the  council  of  the  corporation; 
and  a  tax  for  such  expense  shall  be  levied  and  collected  as  a 
part  of  the  ordinary  expenses  of  the  corporation.1  [66  v.  193, 
§  260.] 

(1)    See  note  (4)  to  §  2050  R.  S.,  supra. 

Sec.  2073  R.  S.  [Return  to  habeas  corpus.]  It  shall  be  a  suf- 
ficient return  to  a  writ  of  habeas  corpus,  directed  to  any  per- 
son or  officer,  inquiring  into  the  cause  or  detention  of  an  infant 
committed  to  a  house  of  refuge  and  correction,  that  the  infant 
named  in  the  writ,  was,  on  a  day  therein  named,  committed  to 
the  guardianship  of  the  directors  x  of  the  house  of  refuge  and 

correction,  in  the  city  or  village  of (as  the  case  may  be), 

by  the  person  or  officer  who  executed  the  commitment,  naming 
him,  until  such  infant  should  arrive  at  legal  age,  and  that  that 
period  has  not  arrived ;  but  the  court,  nevertheless,  or  a  judge 
thereof,  shall  have  the  power  on  habeas  corpus  specified  in  sec- 
tion two  thousand  and  sixty-one.  [66  v.  193,  §  261;  (S.  &  C. 
692).] 

(1)  See  note  (2)  to  §  2050  R.  8.,  supra. 

Sec.  2074 R.  S.  [Commitment:  how  far  examinable.]  Where 
a  commitment  has,  in  fact,  been  executed  by  a  person  author- 
ized by  this  chapter  1  to  execute  it,  the  existence  of  the  circum- 
stances justifying  its  execution  shall  not  be  otherwise  examin- 
able than  in  an  action  against  the  directors  2  of  such  institution, 


Code  §141]       cities,  dep't  of  public  service.  361 

as  provided  in  this  chapter ;  but  the  court  or  judge  on  habeas 
corpus  shall  have  the  power  mentioned  in  said  section  two  thou- 
sand and  sixty-one.      [66  v.  193,  §  262 ;  (S.  &  C.  692).] 

(1)    See  note   (1)  to  §  2050  R.  S.  (2)   See  note  (2)  to  §  2050  R.  S., 

supra.  supra. 

Sec.  2075  R.  S.     [Aggrieved  party  may  apply  to  the  board.]     If 

a  parent,  guardian,  master  .to  whom  an  infant  has  been  appren- 
ticed, a  person  occupying  the  position  of  parent,  protector,  or 
guardian,  in  fact,  or  a  relative  by  blood  or  marriage,  not  fur- 
ther remote  than  first  cousin  to  such  infant,  feels  aggrieved  by 
the  commitment  of  an  infant  to  the  directors  of  a  house  of 
refuge  and  correction,  by  a  person  authorized  by  this  chapter  1 
to  commit  such  infant,  he  may  make  a  written  application  to  the 
board,2  at  such  time  as  the  directors,  by  rule  or  resolution, 
provide  for  hearing  applications,  not  later  than  the  next  regular 
meeting  of  the  board,  to  have  the  infant  delivered  to  him; 
which  application  shall  state  the  ground  of  the  applicant's 
claim  to  the  custody  of  such  infant,  and  the  reason  for  claim- 
ing such  custody.      [66  v.  194  (193),  §  263;  (S.  &  C.  692).] 

(1)    See  note   (1)  to  §  2050  R.  &  (2)  See  note  (2)  to  §  2050  R.  S., 

supra.  supra. 

Sec.  2076  It.  S.  [Decision  of  application.]  Within  ten  days 
after  hearing  such  application,  the  directors  1  shall  decide ;  and 
if  they  be  of  opinion  that  the  welfare  of  such  infant  will  be  pro- 
moted by  granting  the  application,  they  shall  make  an  order 
to  that  effect;  otherwise  they  shall  decline  the  application.2 
[66  v.  194,  §  264;  (S.  &  C.  692).] 

(1)  See  note  (2)  to  §  2050  R.  S.,  of  the  board  at  which  a  majority  is 
supra.  present   uniting  in  the  action.     Eat 

(2)  How     order     made. —  Such  parte  Walker,  8  B.  198. 
order  should  be  made  at  a  meeting 

Sec.  2077  R  S.  [Action  against  directors.]  The  applicant 
may,  if  the  application  be  declined,  upon  first  giving  security 
for  the  payment  of  costs,  commence  an  action  against  such  di- 
rectors *  in  the  Court  of  Common  Pleas  or  Superior  Court  of 
the  county  in  which  the  house  is  situated,  for  the  recovery  of 
the  infant,  or  his  liberation;  which  action  shall  be  conducted 
in  all  respects  as  actions  under  the  Code  of  Civil  Procedure, 
except  the  case  shall  have  precedence  of  all  others  in  the  time 
of  trial.      [66  v.  194,  §  265  ;  (S.  &  C.  692).] 

(1)  See  note  (2)  to  §  2050  R.  S.,  supra. 


362  the  ohio  municipal  code.  [Code  §141 

Sec.  2078  R.  S.  [Costs  in  such  cases.]  The  costs  of  such  ac- 
tion shall  be  paid  by  the  applicant,  or  out  of  the  county  treas- 
ury, unless  the  court  certify  in  the  journal  entry  of  the  judg- 
ment, that  the  refusal  of  the  directors  *  to  grant  the  applica- 
tion of  the  plaintiff  was  plainly  unreasonable,  or  the  original 
commitment  manifestly  improper  and  unnecessary,  in  which 
case  the  costs  shall  be  taxed  against  the  party  in  fault,  on  notice 
to  him.      [66  v.  194,  §  266;  (S.  &  C.  692).] 

(1)  See  note  (2)  to  §  2050  R.  S.,  supra. 

Sec.  2081 R.  S.  [Action  against  directors :  where  brought ; 
service.]  Actions  may  be  brought  by  and  against  the  direc- 
tors 1  of  the  house  of  refuge  and  correction,  before  any  court 
of  competent  jurisdiction ;  and  process  may  be  served  by  leaving 
a  copy  of  the  writ  with  a  director,  or  at  the  office  of  such  insti- 
tution, with  any  officer  thereof.  [66  v.  194,  §  269;  (S.  &  C. 
692).] 

( 1 )    See    note    to    §    2050    R.    S.,  supra. 

(3)      City  Prisons  and  Station  Houses.1 

Sec.  2092  R.  S.  [Sustenance,  etc.,  for  prisoners.]  The  mar- 
shal, chief  of  police,  or  superintendent,  as  the  case  may  be, 
shall  provide  all  persons  confined  in  such  prison  or  station- 
houses  with  necessary  food  during  such  confinement,  and  see 
that  such  places  of  confinement  are  kept  clean  and  made  com- 
fortable for  the  inmates  thereof.      [66  v.  186,  §  216.] 

( 1 )    Former   provisions  relating  tutions,"  etc.,  and  provides  that  "  in 

to    subject    of    corporation    prisons  the  control  and  supervision  of  such 

and  station  houses  were  contained  in  institutions  said  directors  of  public 

subdivision  3,  Chap.  6,  Div.  5,  Title  service    shall    be    governed    by    the 

XII  R.  8.,   §§  2091-2094  R.  8.,  in-  provisions"    of    certain    sections    of 

elusive,  of  which  only   §   2091,   giv-  the   Revised    Statutes,   among   them 

ing  control  of  such   institutions  to  §§    2092,   2093   and   2094,    referring 

the  marshal  or  chief  of  police,  is  re-  to  city  prisons  and  station  houses, 

pealed.  But  see  §§  147,  149  and  166  of  the 

Management    of    prisons    and  Code,  which  confer  all  power  with 

station  houses. —  §  141  of  the  Code  respect    to   the    government   of   the 

gives  to  board  of  public  service  the  police  department  and  the  appoint- 

management     and     control     of     all  ment  of  station  house  keepers  upon 

houses       of       refuge,       workhouses,  the  mayor  and  the  board  of  public 

city  farm  schools,   infirmaries,  hos-  safety;   and  see  §    154  of  the  Code 

pitals,   pest  houses  and  "  all   other  which  gives  to  the  board  of  public 

charitable    and    reformatory    insti-  safety  certain  powers   with   respect 


Code  §141]      cities,  dep't  of  public  service.  363 

to  the  erection  and  repair  of  station  in    §  '2091    R.    S.,    repealed.     This 

houses.  power  is  conferred  upon  all  munici- 

Power  to  establish  prisons  and  palities  in  paragraph  20  of  §  7   of 

station  houses  was  formerly  given  the  Code,  page  59. 

Sec.  2093  R.  S.  [Provision  therefor  by  council.]  The  coun- 
cil shall  provide,  by  ordinance,  for  sustaining  all  persons  sen- 
tenced to  or  confined  in  such  prison  or  station-houses,  at  the 
expense  of  the  corporation;  and  on  the  presentation  of  bills 
for  food,  sustenance,  and  necessary  supplies,  to  the  proper  offi- 
cer, certified  by  such  person  as  the  council  may  designate, 
such  officer  shall  audit  the  same,  under  such  rules  and  regula- 
tions as  the  council  may  prescribe,  and  draw  his  order  on  the 
treasurer  of  the  corporation  in  favor  of  the  officer  presenting 
such  bill ;  but  the  amount  shall  not  exceed  forty  cents  a  day  for 
any  person  so  confined.      [66  v.  186,  §  217.] 

Sec.  2094  R.  S.  [Disposition  of  prisoners  where  there  is 
no  work-house.]  In  corporations  in  which  there  is  no  work- 
house, the  council  may,  by  ordinance,  provide  for  the  keeping  of 
persons  convicted  and  sentenced  to  hard  labor,  during  the  term 
of  their  imprisonment,  at  such  pLce  or  places  within  the 
corporation  as  the  council  may  determine.      [66  v.  186,  §  218.] 

(Jf.)   Work-houses.1 

Sec.  2099  R.  S.     [Who    shall    be    sentenced    to    work-house.] 

When  a  person  over  sixteen  years  of  age  is  convicted  of  an 
offense,  under  the  law  of  the  state  or  an  ordinance  of  a  mu- 
nicipal corporation,  and  the  tribunal  before  which  the  convic- 
tion is  had  is  directed  by  law  to  commit  the  offender  to  the 
county  jail  or  corporation  prison,  the  court,  mayor,  or  justice 
of  the  peace,  as  the  case  may  be,  shall  sentence  the  offender 
to  the  work-house,  if  there  is  such  house  in  the  county ;  provid- 
ed, that  when  a  commitment  is  made  from  a  city,  village,  oi 
township  in  the  county,  other  than  in  the  municipality  contain- 
ing such  work-house,  the  council  of  such  city  or  village,  or  the 
trustees  of  such  township,  shall  transmit  with  the  mittimus  a 
sum  of  money  equal  to  forty  cents  per  day  for  the  time  of  such 
commitment,  to  be  placed  in  the  hands  of  the  superintendent  of 
such  work-house,  for  the  care  and  maintenance  of  such  prison- 
er.2     [73  v.  211,  §  275.] 

(1)  Former  provisions  relating  R.  S.,  §§  2095  to  (2107-17)  R.  S., 
to  workhouses  were  contained  in  inclusive.  Of  these  §§  2095  to  209? 
Subd.  4,  Chap.  6,  Div.  5,  Title  XII       R.   S.,  inclusive,  2099a  to  2099c  R 


364  the  ohio  municipal  code.  [Code  §   141 

S.,    inclusive,    2100a,    2100&,    2100a1,  workhouses    in   Muskingum    county. 

2100e,  and  2104  R.  S.;  are  repealed  For    the   sections   not   repealed   and 

by  the  code,   §§   2107-1   to  2107-17  not    expressly    re-enacted,    see    Part 

inclusive    were    repealed    April    26,  II  under  Charitable  and  Reform- 

1904   (97  O.  L.  449).  atory  Institutions. 

The  sections  not  specifically  re-  Power  to  establish  work- 
enacted  by  §  141  of  the  Code,  and  houses,  see  paragraph  20  of  §  7 
not  repealed  are  §§  2100c  (relating  of  the  Code,  page  59. 
to  habitual  offenders),  2101  (2)  Validity. —  This  section  was 
(prompt  commitment  and  fees),  held  constitutional  in  Kimbleawecz 
2103  (punishment  for  escape),  v.  State,  51  O.  S.  228. 
2107  (erection  of  workhouse  by  city  Discretion  of  court.— It  is  dis- 
and  county  jointly),  2107a  (1)  cretionary  with  the  court  whether  a 
(receiving  persons  sentenced  from  minor  under  the  age  of  sixteen  shall 
other  counties),  2107a  (2.)  to  2107e  be  confined  in  the  workhouse  or 
(1)  (workhouses  erected  by  coun-  house  of  refuge.  Ex  parte  Walker, 
ties  jointly),  2107a   (3)  to  (2107w)  8  B.  198. 


Sec.  2100 U.S.  [Labor  of  prisoners  sentenced  to  work-house; 
their  discharge.]  A  person  so  sentenced  shall  be  received  into 
such  work-house,  and  shall  be  kept  and  confined  at  labor  there- 
in, or  if  such  labor  cannot  be  furnished  therein,  then  such  per- 
son may  be  employed  at  hard  labor  elsewhere  within  the  limits 
of  the  corporation  where  such  employment  shall  be  authorized 
by  ordinance,  and  shall  be  subject  to  the  rules,  regulations  and 
discipline  thereof,  until  the  expiration  of  his  sentence,  when 
such  person  shall  be  discharged;  but  no  person  committed  or 
held  in  default  of  the  payment  of  a  fine,  penalty,  or  costs  of 
any  prosecution,  shall  be  released  under  the  laws  providing  for 
the  relief  of  insolvent  debtors.1  [1885,  April  9 :  82  v.  117; 
Kev.  Stat.  1880;  66  v.  195,  §  276.] 

( 1 )    Release  of  insolvent  debtors  provided  in  §  6379  R.  S. 


Sec.  2102  R.  S.  [Discharge  and  record  thereof;  parole;  rules 
and  regulations  and  conditions.]  Any  board  vested  by  statute 
with  authority  to  manage  any  workhouse,  now  or  hereafter 
established,  shall  have  power  to  discharge,  for  good  and  suffi- 
cient cause,  a  person  committed  to  such  workhouse ;  but  a  record 
of  all  such  discharges  shall  be  kept  and  reported  to  the  council, 
in  the  annual  report  of  the  board,  with  a  brief  statement  of 
the  reasons  therefor.  Said  board  shall  also  have  power  to 
establish  rules  and  regulations  under  which,  and  to  specify  the 


Code  §    141]    CITIES.      DEPARTMENT  OF  PUBLIC  SERVICE.  364ft 

conditions  on  which,  any  prisoner  may  be  allowed  to  go  upon 
parole  outside  of  the  buildings  and  enclosures,  but  to  remain, 
while  on  parole,  in  the  legal  custody  and  under  the  control  of 
said  board,  and  subject  at  any  time  to  be  taken  back  within  the 
enclosure  of  said  institution ;  and  full  power  to  enforce  such 
rules,  regulations  and  conditions,  and  to  retake  and  reimprison 
any  convict  so  upon  parole,  is  hereby  conferred  upon  said 
board,  whose  written  order,  certified  by  its  secretary,  shall  be 
sufficient  warrant  for  all  officers  named  therein  to  authorize  such 
officers  to  return  to  actual  custody  any  conditionally  released 
or  paroled  prisoner;  and  it  is  hereby  made  the  duty  of  all' 
officers  to  execute  said  order  the  same  as  ordinary  criminal 
process ;  and  said  board  may  employ  or  authorize  any  person 
or  persons  to  see  that  the  conditions  of  said  parole  are  not 
violated,  and  in  case  of  such  violation  to  return  to  said  work- 
house any  such  prisoner  so  violating  said  parole,  and  the  time 
between  the  violation  of  the  conditions  of  such  parole,  or  con- 
ditional release  (by  whatever  name),  as  entered  by  order  of 
such  board  on  the  records  of  the  workhouse  and  the  reimpris- 
onment  or  return  of  such  prisoner,  shall  not  be  counted  as  any 
part  or  portion  of  time  served  under  any  sentence;  and  any 
prisoner  at  large  upon  such  parole  who  fails  to  return  to  the 
actual  custody  of  said  workhouse  as  may  be  specified  as  one  of 
the  conditions  of  his  parole,  or  commits  a  fresh  crime  and  is 
convicted  thereof,  shall  be,  on  the  order  of  said  board,  treated 
as  an  escaped  prisoner  and  subject  to  the  penalties  named  in 
section  two  thousand  one  hundred  and  three  (2103)  of  the 
Revised  Statutes;  provided,  that  no  such  parole  shall  be 
granted  by  any  such  board,  without  previous  notice  thereof 
to  the  trial  judge.1     [97  v.  488;  66  v.  196.] 

(1)      Power     to     discharge. —  an  act  of  humanity  as  distinguished 

"Good  and  sufficient  cause"  must  be  from  a  pardon.     Jiha  v.  Barry,   16 

construed   to    mean    a   cause   which  Dec.  33;  3  N.  P.    (N.  S.)   65    (aff'd 

arises  from  facts  and  circumstances  Circuit   Court   without   report), 

which  supervene  the  commitment  or  The  power  to  discharge  is  only  in 

did  not  enter  into  the  conviction  or  case   sentence   was   imposed   by  the 

sentence.     Such   discharge   must  be  municipal    court.     lb. 

Sec.  2105  R.  S.  [Officers  to  have  police  powers.]  The  super- 
intendent, assistant  superintendent,  and  guards  of  the  work- 
house shall  have  such  powers  of  policemen  as  may  be  necessary 
for  the  proper  performance  of  the  duties  of  their  position. 
[66  v.  196,  §  281.] 


365  the  ohio  municipal   code.  [Code  §  141 

Sec.  2106  R.  S.  [Infants  received  where  there  is  no  house  of 
refuge.]  The  council  of  any  corporation  owning  a  work-house, 
but  not  owning  a  house  of  refuge  and  correction,  shall  have 
power  to  provide  for  receiving  infants  into  such  work-house, 
in  the  manner  prescribed  in  subdivision  one  of  this  chapter;  * 
and  the  board  of  directors  of  such  work-house  shall  have  power 
to  make  such  rules  and  regulations  in  regard  to  the  admission 
of  infants,  and  their  management,  as  are  provided  in  that  sub- 
division.     [66  v.  196,  §  282.] 

(1)  Statutes  referred  to. —  tions  of  this  subdivision  are  re- 
Subdivision  ( 1 )  here  referred  to  enacted  and  found  in  "  ( 2 )  Houses 
means  the  subdivision  relating  to  of  Refuge "  supra.  See  note  ( 1 ) 
houses  of  refuge.     Part  of  the  sec-  to  §  2050  R.   S.,  p.  352. 


(5)  Hospitals.1 

Sec.  2165  R.  S.  [Board  to  control  hospital,  etc.]  The  board  2 
shall  have  the  entire  management  and  control  of  such  hospital, 
when  the  same  has  been  completed  and  ready  for  use,  and  of 
the  furnishing  thereof,  subject  to  the  ordinances  of  the  council, 
and  shal]  establish  such  rules  for  its  government,  and  the 
admission  of  persons  to  its  privileges,  as  it  may  deem  expe- 
dient ;  and  it  shall  also  have  power  to  employ  a  superintendent, 
steward,  physicians,  nurses,  and  such  other  employes  as  it  may 
deem  necessary,  and  fix  the  compensation  of  all  persons  so 
employed,  which  compensation  shall  be  subject  to  the  approval 
of  the  council.3      [67  v.  71,  §  295.] 

(1)   Former  provisions  relating  Charitable  and  Reformatory  In- 

to  hospitals  formed  Chap.  3  of  Div.  stitutions  in  Part  II.     §§    (2167- 

6,    Title    XII,    R.    S.,    §§    2153    to  9)  to  (2167-21)  are  re-enacted  in  § 

(2167-21)      R.     S.       Of     these,     §  220  of  the  Code. 
(2167-3)  as  amended,  95  O.  L.  259,  Power    to    establish    hospitals, 

and  §§    (2167-7),    (2167-8)    are  re-  see    paragraph    16    of    §    7    of   the 

pealed.  Code,  page  55. 

For   sections   not  re-enacted  here  (2)    Managing  board  is  now  the 

and    not   repealed,    see    §§    2153    to  board  of  public  service  (§141  of  the 

2164    R.    S.,    inclusive,    §§    2166    to  Code). 

(2167-2)R.S.,  inclusive,  §§(2167-4)  (3)    Cited     Hauck    v.    S^te,    45 

to    (2167-6)   R.  S.,  inclusive,  under  O.  S.  439. 

(6)  Infirmaries.1 

Sec.  2168  R.  S.  [Management  of  infirmaries.  The  manage- 
ment of  the  affairs  of  all  corporation  infirmaries  now  existing  c  r 


Code    §  141]    CITIES.      DEPARTMENT  OF  PUBLIC  SERVICE.  366 

which  may  hereafter  be  established,  arid  the  care  of  the  in- 
mates thereof,  the  erection  and  enlargement  of  infirmary  build- 
ings and  additions  thereto,  and  the  repair  and  furnishing 
thereof,  the  improvement  of  the  grounds  therewith  connected, 
and  the  granting  of  out-dopr  relief  to  the  poor,  shall  be  vested  in 
a  board  of  three  directors,  which  shall  be  called  "  the  board  of 
infirmary  directors ;  "  2  provided,  that  in  cities  of  the  second 
grade  of  the  first  class,3  the  board  of  infirmary  directors  shall 
consist  of  five  members,  not  more  than  three  of  whom  shall  be 
of  the  same  political  party.  [1883,  March  7  ;  80  v.  46,  47 ;  77 
v.  16;  Kev.  Stat.  1880;  72  v.  76,  §  298.] 

( 1 )  Former  provisions  relating  word  "  board "  oi  the  word  "  di- 
to  infirmaries  formed  Chap.  4  of  rectors "  occurs  in  this  and  subse- 
Div.  6,  Title  XII  R.  S.,  §§  2168  to  quent  sections  on  this  subject,  it 
(2180-4)  R.  S.  Of  these  sections,  must  be  taken  to  mean  the  board  of 
§§    2170   and    (2170-1)    R.    S.,   are  public  service. 

repealed.  ( 3 )   See  note  "  Grades  and  classes 

For    sections   on   the   subject   not  under  new  Code "  under  §   1599  R. 

re-enacted   here,    and    not   repealed,  S.,  page  31. 

see   Part  II,   Charitable  and   Re-  Accounting   officer. —  The  board 

formatory    Institutions,    §§    2173  of  infirmary  directors  held  to  be  an 

to    (2180-4)    R.  S.,  inclusive.  accounting  officer  within  the  mean- 

(2)  Managing  board  would  now  ing  of  §  7075  R.  S.  Hauck  v.  State, 
be   the   board  of   public  service    (§  45  O.  S.  439. 

141    of   the    Code).     Whenever    the 

Sec.  2169  U.S.  [Location  of  pest-houses,  etc.]  The  infirm- 
ary, or  the  pest-house  of  the  corporation  may  be  located  either 
within  or  outside  of  the  corporation  limits,  and  the  council  is 
authorized  to  purchase  and  hold  the  necessary  real  estate  on 
which  to  build  the  same.1      [72  v.  76,  §  298.] 

(1)    Pest  house   outside  corpo-  518;  Lorain  v.  Rolling,  24  C.  C.  82. 

rate  limits  can  be  so  located  with-  Power  to  establish  pest  houses 

out    the    consent    of    the    township  and    infirmaries,    see    paragraph    16 

trustees.     Lorain    v.    Rolling,    3    C.  of  §  7  of  the  Code,  page  55. 

C.    (N.  S.)    660,  24  C.  C.  82.  Power    to    appropriate    property 

When  a  nuisance,  see  Youngstown  for,  see  code  §  10,  par.  5th,  p.  81. 
Township  v.  Youngstown,  25  C.  C. 

Sec.  2171  R.  S.  [To  be  governed  by  regulations  applicable  to 
hospitals.]  In  the  management  of  an  infirmary,  in  the  care 
and  treatment  of  the  inmates  thereof,  and  in  the  erection, 
enlargement,  or  repair  of  any  building  for  infirmary  purposes, 
or  of  any  addition  thereto,  the  directors  *  shall  have  the  same 
powers,  be  governed  by  the  same  regulations,  and  perform  the 
same  duties,  as  far  as  applicable,  as  are  vested  in  the  commis* 


367  the  oirio  municipal  code.         [Code  §  142 

sioners  of  hospitals,  as  provided  in  the  preceding  chapter,2  and 
the  power  of  the  council  in  relation  to  such  infirmaries,  and 
the  conduct  of  the  directors  thereof,  shall  be  the  same,  so  far 
as  applicable,  as  provided  in  the  chapter  in  relation  to  hospitals. 
[66  v.  200,  §  300.] 

(1)   See  note  (2)  to  §  2168  R.  S.,  (2)    See  note  (1)  to  §  2165  R.  Si, 

supra.  supra. 

Sec.  2172 U.S.  [Their  care  for  the  inmates;  separation  of 
sexes,  etc.]  The  directors  '  shall  further  see  that  the  inmates 
of  such  infirmary  are  comfortably  provided  for  and  kindly 
treated ;  and  they  may,  whenever  deemed  necessary,  provide  for 
the  care  and  support  of  the  males  and  females  in  separate  build- 
ings, or  in  separate  departments  of  the  same  building.  [66  v. 
200,  §  301.] 

(1)   See  note  (2)  to  §  2168  R.  S.,  supra. 

(7)  Platting  Commission,1 

Sec.  142.     [Board     shall     constitute     platting     commission.]2 

The  directors  of  public  service  shall  also  constitute  a  platting 
commission  for  the  city,  whenever  council  shall  deem  it  ex- 
pedient to  plat  any  portion  of  the  territory  within  the  corporate 
limits  in  which  the  necessary  or  convenient  streets,  or  alleys 
have  not  already  been  accepted  by  the  corporation  so  as  to 
become  public  streets ;  and  such  directors,  acting  as  such 
platting  commission,  shall  have  all  the  powers  and  perform  all 
the  duties  conferred  or  required  in  sections  2629,  2630,  2631, 
2632,  2633,  2634,  2635  and  2636  of  the  Eevised  Statutes  of 
Ohio. 

(1)   Former  provisions  relating  here    except    §§    2626,    2627,    2628, 

to      platting     commission      formed  2637,  2638,  and   2639   R.  S.,  which 

Chap.  12  of  Div.  8,  Title  XII,  R.  S.,  are  repealed. 

§§    2626    to    2639    R.    S.,    inclusive.  (2)    Old    section.— Compare    old 

All    these    sections    are    re-enacted  §  2626  R.  S.,  repealed. 

Sec.  2629  E.  S.  [To  employ  engineers,  assistants,  etc.]  The 
commission  1  shall  have  power  to  employ  an  engineer,  and  such 
assistants  as  they  may  find  necessary,  and  fix  their  salaries 


Code  §  142]  cities,    department  of  public  service. 


368 


within  limits  to  be  prescribed  by  council.      [68  v.  36,  §  1 ;  71 
v.  116,  §  1.] 

(1)  Commission  used  here  and  taken  to  mean  the  board  of  public 
in  subsequent  sections  on  the  sub-  service  acting  as  a  platting  com- 
ject  of  platting  commission  must  be      mission    (§  142  of  Code). 

Sec.  2630  R.  S.  [Powers  and  duties  of  board.]  It  shall  be  the 
duty  of  such  commission  *  to  cause  to  be  made  a  plat  of  the 
territory  which  they  are  ordered  to  lay  out,  as  soon  as  the  same 
can  be  conveniently  done,  showing  the  location  of  the  streets 
and  alleys  already  dedicated,  and  those  proposed;  and  for  the 
purpose  of  making  the  necessary  surveys,  they  shall  have  power 
to  enter  upon  all  property  within  the  limits  of  the  corporation. 
[68  v.  36,  §  1 ;  71  v.  116,  §  1.] 

( 1 )  See  note  ( 1 )  to  §  2629  R.  S.,  supra. 

Sec.  2631  R.  S.  [Notice  of  completion  of  plans  to  be  published 
and  plans  exhibited.]  When  the  whole  plan,  or  any  portion 
thereof,  is  completed,  or  when  the  location  of  any  avenue,  street, 
roadway,  or  alley  has  been  finally  determined  upon  by  the 
commission,1  a  plat  of  the  plan,  avenue,  street,  roadway,  or 
alley,  shall  be  placed  in  the  office  of  the  city  civil  engineer,  for 
the  inspection  of  persons  interested,  and  notice  that  it  is  ready 
for  inspection  shall  be  published  in  one  or  more  newspapers  of 
general  circulation  within  such  municipal  corporation,  for  six 
consecutive  weeks.2      [68  v.  36,  §  1 ;  71  v.  116,  §  1.] 

(1)  See  note  (1)  to  §  2629  R.  S.,  (2)    Publication.— See   §    124   of 

supra.  the  Code  and  notes. 


Sec.  2632  R.  S.  [Commission  to  hear  objections  to  plans  and 
make  alterations.]  During  such  six  weeks  the  commission  * 
shall  hold  sessions  at  least  once  each  week,  at  the  time  and  place 
stated  in  the  advertisement,  and  at  such  other  times  and  places 
as  it  may  deem  proper,  to  hear  any  objections  that  may  be 
urged  against  any  portion  of  the  plat,  or  the  location  of  any 
avenue,  street,  roadway,  or  alley;  and  such  alterations  may 
be  made  as  the  commission  shall  deem  proper.  [68  v.  36,  §  1 ; 
71  v.  116,  §  1.] 

(1)  See  note   (1)  to  §  2629  R.  S.,  supra. 


369  the  ohio  municipal  code.         [Code  §  142 

Sec.  2633  R.  S.  [Copies  of  plans  to  be  deposited  in  county  re- 
corder's and  city  engineer's  offices.]  At  the  end  of  the  time 
aforesaid,  the  commission  *  shall  cause  copies  of  the  plat,  as 
finally  adopted,  to  be  prepared,  and  such  monuments  or  marks 
as  it  may  think  proper  to  be  placed  on  the  grounds,  and  shall 
deposit  one  copy,  certified  to  by  it,  in  the  office  of  the  county 
recorder,  and  another  in  the  office  of  the  city  engineer,  and 
such  plan  shall  be  deemed  and  taken  to  be  the  regularly  adopted 
plan  for  streets  and  alleys  in  such  territory;  and  no  streets  or 
alleys,  except  those  laid  down  on  such  plan,  shall  subsequently 
be  in  any  way  accepted  as  public  streets  or  alleys  by  the  munici- 
pal corporation,  nor  shall  any  of  the  public  funds  be  expended  in 
the  improvement  or  repair  of  streets  or  alleys  subsequently 
laid  out,  and  not  on  such  plat:  provided,  however,  that  noth- 
ing herein  shall  be  construed  to  prevent  any  municipal  corpora- 
tion from  exercising  the  power  of  condemnation,  in  any  of  the 
cases  where  it  is  now  or  may  be  hereafter  by  law  authorized  to 
condemn  and  appropriate  property  to  public  use,  although  it 
be  not  shown  as  a  street  on  such  plat.2  [68  v.  36,  §  1 ;  71  v. 
116,  §  L] 

( 1 )  See  note  ( 1 )  to  §  2629  R.  S.,  dedication.—  See  notes  to  §  2650 
supra.  R.    S.,    re-enacted    in    §    28    of    the 

(2)  Common  law  and  statutory      Code,  pp.  127,  128. 

Sec.  2634  R.  S.     [Acceptance  of  plan  by  owner;  dedication  of 

streets,  etc.]  The  owners  of  any  portion  of  the  ground  so  plat- 
ted  may  at  any  time,  by  a  declaration  of  their  intention  so  to 
do,  properly  acknowledged  and  recorded  in  the  county  recorder's 
office,  accept  such  plan  so  far  as  it  concerns  their  property; 
and  such  acceptance,  or  the  selling  of  lots  referring  to  the  plan, 
or  the  streets  and  alleys  therein  laid  out,  shall  be  a  statutory 
dedication  of  the  streets  and  alleys  in  the  property  described 
in  the  acceptance,  or  of  the  streets  or  alleys  called  for  in  the 
description  of  the  lots  so  sold,  so  far  as  the  grantor  has  a  right 
to  dedicate  the  same.1      [68  v.  37,  §  2.] 

( 1 )  Common  law  and  statutory  .  R.  S.,  re-enacted  in  §  28  of  the 
dedication. —  See  notes   to    §   2650      Code,  pp.  127,  128. 

Sec.  2635  R.  S.  [Joint  commission  by  adjoining  municipal  cor- 
porations.] When  municipal  corporations  adjoin  each  other,  it 
shall  be  lawful  for  the  councils  of  such  municipal  corporations 
to  agree,  in  any  manner  they  may  determine,  upon  the  appoint- 


Code  §  143]  .cities,    department  of  public  service.        370 

ment  of  a  joint  commission  *  for  the  purposes  of  this  chapter;  2 
and  such  commission,  when  appointed,  shall  have  all  the  power 
over  the  territory  of  the  municipal  corporations  described  in  the 
resolutions  of  the  councils,  that  is  hereby  given  to  a  commission 
appointed  by  a  single  council.      [68  v.  37,  §  3.] 

( 1 )   Joint    commission. —  As    to      mission  to  the  board  of  public  strv- 
whether  the  provision  for   appoint-       ice  exclusively,  quere. 
ing  a  joint  commission  is  consistent  See    note    (1)    to    §    2533    R.    S., 

with  the  provisions  of  the  Code  giv-       page  73. 

ing  the  powers  of  a  platting  com-  (2)   See  note  (1)   to  §  142  of  the 

Code,  supra. 

Sec.  2636.  [Amendment  of  plans.]  Plans  can  be  amended 
after  adoption,  by  like  proceedings  by  which  they  were  origin- 
ally adopted.      [68  v.  37,  §  5.] 

(8)   Contracts  by  the  Board  of  Public  Service. 

Sec.  143.  [As  to  contracts.]1  The  directors  of  public  service 
may  make  any  contract  or  purchase  supplies  or  material  or 
provide  labor  for  any  work  under  the  supervision  of  that  de- 
partment not  involving  more  than  five  hundred  dollars  ($500). 2 
When  any  expenditure  within  said  department,  other  than 
the  compensation  of  persons  employed  therein,  exceeds  five 
hundred  dollars,  such  expenditure  shall  first  be  authorized 
and  directed  by  ordinance  of  council  and  when  so  authorized 
and  directed,  the  directors  of  public  service  shall  make  a  writ- 
ten contract3  with  the  lowest  and  best  bidder4  after  adver- 
tisement for  not  less  than  two  nor  more  than  four  consecu- 
tive weeks5  in  a  newspaper  of  general  circulation  within  the 
city.6  The  bids  shall  be  opened  at  12  o'clock  noon,  on  the  last 
day  for  filing  the  same  by  the  clerk  of  such  department  of  pub- 
lic service  and  publicly  read  by  him.  Each  bid  shall  contain 
the  full  name  of  every  person  or  company  interested  in  the 
same,  and  shall  be  accompanied  by  a  sufficient  bond7  or  certi- 
fied check  on  some  solvent  bank,  that  if  the  bid  is  accepted  a 
contract  will  be  entered  into  and  the  performance  of  it  properly 


371  the  ohio  municipal  code.  [Code  §  143 

secured.  If  the  work  bid  for  embraces  both  labor  and  ma- 
terial they  shall  be  separately  stated  with  the  price  thereof. 
Tlie  board  may  reject  any  and  all  bids.8  The  contract  shall 
be  between  the  corporation  and  the  bidder,  and  the  corporation 
shall  pay  the  contract  price  in  cash.  Where  a  bonus  is  offered 
for  completion  of  contract  prior  to  a  specified  date,  the  depart- 
ment may  exact  a  prorated  penalty  in  like  sum  for  every  day 
of  delay  beyond  a  specified  date.  Where  there  is  reason  to 
believe  there  is  collusion  or  combination  among  bidders,  the 
bids  of  those  concerned  therein,  shall  be  rejected.9 

[Alterations  or  modifications  in  contract.]  Whenever  it  be- 
comes necessary  in  the  opinion  of  the  directors  of  the  appro- 
priate department  in  cities,  or  of  the  council  in  villages,  in  the 
prosecution  of  any  work  or  improvement  under  contract  to 
make  alterations  or  modifications  in  such  contract,  such  al- 
terations or  modifications  shall  only  be  made  by  such  direct- 
ors in  cities  or  council  in  villages,  by  resolution,  but  such 
resolution  shall  be  of  no  effect  until  the  price  to  be  paid  for  the 
work  and  material^  or  both,  under  the  altered  or  modified  con- 
tract, has  been  agreed  upon  in  writing  and  signed  by  the  con- 
tractor, and  the  mayor  in  villages,  and  the  directors  of  the 
appropriate  department  in  cities,  on  behalf  of  the  corporation ; 
and  no  contractor  shall  be  allowed  to  recover  anything  for  work 
or  material,  caused  by  any  alteration  or  modification,  unless 
such  contract  is  made  as  aforesaid;  nor  shall  he,  in  any  case, 
be  allowed,  or  recover  for  such  work  and  material,  or  either, 
more  than  the  agreed  price.10  The  provisions  of  section  794 
of  the  Revised  Statutes  of  Ohio,  so  far  as  the  same  may  apply, 
shall  remain  in  full  force  and  effect. 

(1)  Old  sections. —  Among  the  pealed  (contracts  by  board  of  pub- 
old  sections  embodying  provisions  lie  service  in  Cincinnati)  ;  2224  R. 
similar  to  those  in  the  section  S.,  repealed  (changes  in  such  con- 
above,  see  §  2303  R.  S.,  repealed;  tracts,  how  made)  ;  §§  (1545-73)  to 
and  see  §§  2214  and  2215  R.  S.,  re-  (1545-79),   all   repealed    (contracts 


Code  §  143]     cities,     department  op  public  service. 


372 


in  Cleveland);  §§(1545-150)  to 
(1545-155)  R.  S.,  and  95  O.  L.  266- 
270,  all  repealed  (contracts  in  Co- 
lumbus) ;  §  (1707d-9)  R.  S.,  re- 
pealed (contracts  by  board  of  city 
affairs  in  Dayton);  §(1545-319) 
R.  S.,  repealed  (contracts  by  board 
of  control  in  Hamilton);  §(1545- 
249)  R.  S.,  repealed  (contracts  by 
board  of  public  affairs  in  Spring- 
field) ;  §(1545-280)  R.  S.,  repealed 
(contracts  by  board  of  city  commis- 
sioners in  Youngstown  and  Akron)  ; 
and  see  old  §§  1693  R.  S.  and  2690; 
R.  S.,  repealed. 

Delegation  of  power.  —  The 
power  to  make  public  contracts  can- 
not be  delegated  by  one  board  or 
officer  to  another.  Knauss  v.  Co- 
lumbus,  13  Dec.  200. 

But  allowing  engineer  to  deter- 
mine engineering  matters  with  re- 
gard to  bids  is  not  a  taking  away  of 
powers  from  the  board.  The  engi- 
neer in  such  case  is  acting  as  agent. 
Ampt  v.  Cincinnati,  17  C.  C.  516 
(affirmed  60  O.  S.  621). 

Municipality's  liability  on 
contract. — There  is  no  implied  li- 
ability ex  contractu  of  a  municipal- 
ity, and  it  can  become  obligated  only 
in  the  manner  fixed  by  statute. 
Wellston  v.  Morgan,  65  O.  S.  219; 
see  also  McCloud  v.  Columbus,  54 
O.  S.  439;  Lancaster  v.  Miller,  58 
O.  S.  558;  Buchanan  Bridge  Co.  v. 
Campbell,  60  O.  S.  406;  Comstock 
v.  Nelsonville,  61  O.  S.  288.  See 
further  note  6,  p.  44,  and  note  2, 
p.  351. 

To  state  a  good  cause  of  action 
against  a  municipality  in  matters 
ex  contractu  the  petition  must  de- 
clare upon  a  contract,  agreement, 
obligation  or  appropriation  made 
and  entered  into  according  to  stat- 
ute. A  petition  on  an  account  mere- 
ly or  quantum  meruit,  in  such  cases 
is  not  sufficient.  Wellston  v.  Mor- 
gan, 65  O.  S.  219. 


Persons  dealing  with  a  municipal 
corporation  must  ascertain  at  their 
own  peril  that  contract  is  made  in 
accordance  with  statute.  Wellston 
v.  Morgan,  65  O.  S.  219. 

Where  a  bidder  has  received  a 
contract  awarded  illegally  he  must 
be  held  to  have  assumed  the  risks 
of  a  decision  declaring  the  award 
invalid.  Hertenstein  v.  Herrmann, 
6  N.  P.  93. 

Where  the  contract  is  illegal,  the 
court  has  no  authority  to  decree 
payment  for  the  part  performed. 
lb. 

Estoppel. — Where  a  municipal 
corporation  has  entered  into  a  con- 
tract with  an  individual  under  and 
by  virtue  of  a  statute  which  is  un- 
constitutional and  the  subject  mat- 
ter of  the  contract  is  not  ultra  vires 
illegal  or  malum  prohibitum,  and 
the  facts  are  such  as  against  the 
corporation  as  would  estop  an  indi- 
vidual from  setting  up  as  a  defense 
the  unconstitutionality  of  the  stat- 
ute, the  municipal  corporation  will 
also  be  so  estopped.  Mt.  Vernon  v. 
State,  71  O.  S.  428. 

So  where  the  municipality  has 
proceeded,  not  in  accordance  with 
the  statutes  governing  its  action, 
but  the  subject  matter  is  within  its 
power,  it  may  be  estopped  as  an  in- 
dividual would  be  estopped.  Mc- 
Gonigalev.  Defiance,  15  O.  F.  D. 
100;  Raynolds  v.  Cleveland,  8  C.  C. 
(N.  S.)  278;  but  see  Lancaster  v. 
Miller,  58  O.  S.  558. 

So  contract  to  supply  municipal- 
ity with  water  tor  period  of  thirty 
years  without  vote  of  the  people, 
when  statute  required  such  vote, 
was  held  to  estop  municipality  from 
denying  its  liability  for  period  dur- 
ing which  it  has  power  to  contract 
without  a  vote  of  the  people.  Mc- 
Gonigale  v.  Defiance,  15  O.  F.  D.  100. 
Form  of  action. — A  controversy 
between  a  municipality  and  an  in- 
dividual, parties  to  a  contract,  as  to 


372a 


THE  OHIO  MUNICIPAL  CODE. 


[Code  §  143 


their  respective  rights  under  the 
contract,  cannot  be  determined  in 
proceedings  in  mandamus.  Mt.  Ver- 
non v.  State,  71  O.  S.  428. 

(2)  Contract  less  than  $500, 

for  street  improvement,  may  be  let 
to  lowest  bidder,  in  discretion  of 
board,  but  council  cannot  require 
such  contract  to  be  so  let.  State 
ex  rel.  v.  Roebuck,  15  Dec.  400. 

Splitting  up  contract. — The  board 
cannot  split  up  a  contract  involving 
altogether  more  than  $500  and  let 
it  in  parts  in  successive  awards,  so 
as  to  evade  the  requirements  of  ad- 
vertisement, etc.  Wing  v.  Cleve- 
land, 15  B.  50;  Lancaster  v.  Miller, 
58  O.  S.  558;  but  where  the  board 
has,  in  good  faith,  elected  to  regard 
the  construction  of  each  section  of 
an  improvement  as  a  matter  distinct 
and  independent,  and  has  proceed- 
ed to  contract  separately  for  each 
section,  each  involving  an  expendi- 
ture of  less  than  five  hundred  dol- 
lars, advertisements  for  bids  would 
not  be  necessary.  Lancaster  v.  Mil- 
ler, 58  O.  S.  558. 

(3)  Extent  of  power  in  mak- 
ing contracts. — The  power  con- 
ferred upon  the  board  of  public  ser- 
vice is  not  simply  to  execute  the 
contract,  but  to  enter  into  it;  the 
contract  is  merely  authorized  by 
council;  it  is  made  and  entered  into 
by  the  board  of  public  service.  Yar- 
yan  v.  Toledo,  28  C.  C.  259;  8  C.  C. 

(N.  S.)  1. 

The  board  may  prepare  plans,  es- 
timates, etc.,  for  a  contract,  and 
this  is  not  the  exercise  of  legisla- 
tive power  and  is  not  conferred  on 
council.    76. 

The  board  may  properly  make  the 
contract  for  street  improvement, 
though  council  has  only  designated 
in  general  terms  the  character  of 
materials  and  the  board  is  required 
to  choose  the  particular  material  to 


be  used,  after  bids  are  received. 
Scott  v.  Hamilton,  7  C.  C.  (N.  S.) 
493. 

A  contract  for  part  of  a  system  of 
improvements  is  not  invalidated  be- 
cause the  entire  system  %will  cost 
more  than  council  has  appropriated. 
Yaryan  v.  Toledo,  28  C.  C.  259;  8 
C.  C.  (N.  S.)    1. 

(4)    Discretion    conferred. — A 

power  given  the  board  to  make  a 
contract  "with  the  lowest  and  best 
bidder"  confers  on  such  board  a  dis- 
cretion to  determine  which  is  the 
lowest  and  best  bidder  under  all  the 
circumstances,  and  this  discretion 
cannot  be  interfered  with  by  the 
court,  in  the  absence  of  fraud  or 
gross  abuse.  Scott  v.  Hamilton,  V 
C.  C.  (N.  S.)  493;  State  ex  rel. 
Walton  v.  Herrmann,  63  O.  S.  440 ; 
Coppin  v.  Herrmann,  7  N.  P.  6  (aff'd 
63  O.  S.  572);  Hubbard  v.  San- 
dusky, 9  C.  C.  638 ;  McClain  v.  Mc- 
Kisson,  15  C.  C.  517;  Coppin  v. 
Herrmann,  6  N.  P.  452;  State  v. 
Board  of  Education,  6  N.  P.  347; 
Irwin  v.  Greenville,  1  Dayton  140; 
Columbus  v.  Board  of  P.  S.,  14  Dec. 
715. 

The  board  is  permitted  under  this 
section,  to  take  the  best  proposition 
offered,  and  may  take  into  consid- 
eration the  quality,  efficiency  and 
feasibility  of  the  thing  to  be  fur- 
nished, the  qualifications  and  re- 
sponsibility of  the  bidder  and  the 
price  in  view  of  all  the  other  con- 
siderations. Yaryan  v.  Toledo,  28 
C.  C.  259;  8  C.  C.  (N.  S.)  1;  State 
el  rel.  v.  Board,  4  C.  C.  76.  And  it 
may  decide  to  accept  a  higher  priced 
article  than  the  one  named  in  the 
lowest  bid,  where  advertisement  was 
general  enough  to  cover  different 
kinds  of  material.  State  ex  rel.  v. 
St.  Bernard,  10  C.  C.  74;  State  ex 
rel.  v.  Bd.  of  Ed.,  20  B.  156. 

But   the   discretion   is   a  "sound 


Code  §  143]         cities,    department  of  public  service. 


373 


discretion," — a  power  to  make  a  de- 
termination based  on  facts,  after  in- 
vestigation, and  not  a  power  to 
make  a  merely  arbitrary  determina- 
tion. Coppin  v.  Herrmann,  7  N.  P. 
528. 

To  authorize  a  court  to  interfere 
on  the  ground  of  the  insufficiency 
of  the  price  received  for  sale  of 
public  property,  the  price  must  have 
been  so  small  that  the  sale  amount- 
ed to  a  reckless  and  improvident  act. 
Kerlin  Bros.  v.  Toledo,  20  C.  C. 
603. 

Where  board  finds  that  the  low- 
est bidder  is  not  reliable,  it  may 
accept  the  next  lowest  bid,  and 
court  will  not  interfere  with  this 
discretion,  although  it  was  not  cor- 
rect on  the  facts.  State  ex  rel.  v. 
St.  Bernard,  10  C.  C.  74. 

But  where  the  best  bidder  refuses 
to  accept  the  contract,  an  award 
cannot  be  made  to  a  third  party, 
agreeing  to  accept  it  at  the  same 
price  unless  there  is  a  readvertise- 
ment,  etc.  Franklin  v.  Baird,  7  N. 
P.  571. 

As  to  discretion  of  public  officers 
in  general,  in  the  letting  of  con- 
tracts, see  Boren  v.  Commr's,  21 
O.  S.  311;  State  v.  Commr's,  36 
O.  S.  326;  Pugh  Printing  Co.  v. 
Deputy  State  Supervisors,  etc.,  22 
C.  C.  584;  Wood  Co.  v.  Pargillis, 
10  C.  C.  376;  State  v.  Directors, 
5  0.  S.  234;  State  v.  Commission- 
ers, 18  O.  S.  386,  20  O.  S.  425; 
State  v.  Yeatman,  22  O.  S.  546. 

Sec.  143  of  the  Code  controls  and 
supersedes  §  794  R.  S.  in  consider- 
ing discretion  of  board  in  awarding 
contract  to  lowest  and  best  bidder. 
Yaryan  v.  Toledo,  28  C.  C.  259; 
8  C.  C.  (N.  S.)  1;  and  it  supersedes 
§  799  R.  S.    Holbrook  v.  Toledo,  28 


C.  C.  284;  8  C.  C.  (N.  S.)  31  (aff'd 
73  O.  S.  400). 

Remedy  of  bidder.  —  Unsuc- 
cessful bidder  cannot  as  such  enjoin 
the  awarding  of  the  contract  to  suc- 
cessful bidder.  His  only  remedy  if 
he  can  show  the  contract  has  been 
improperly  awarded  is  to  sue  as  a 
taxpayer.  Carmichael  &  Co.  v.  Mc- 
Court,  27  C.  C.  775;  6  C.  C.  (N.  S.) 
591.  See  also  Akron  v.  France,  24 
C.  C.  63. 

Petition  must  allege  that  sucess- 
ful  bid  was  not  lowest  and  best. 
Columbus  v.  Board,  14  Dec.  715. 

Regularity  of  bids. — The  bid  to 

be  valid  must  conform  to  the  terms 
of  the  advertisement,  and  if  it  does 
not  do  so,  no  contract  can  be  award- 
ed on  it.  State  ex  rel.  v.  Cincinnati, 
1  N.  P.  377. 

Where  advertisement  asked  for 
bids  for  stone  for  a  reservoir  and 
the  bid  was  for  stone  and  grading, 
an  award  on  such  bid  is  illegal. 
Miller  v.  Pearce,  2  C.  S.  C.  R.  44. 

The  officers  would  have  no  discre- 
tion to  amend  a  bid  for  alleged  mis- 
take, unless  the  data  for  such 
change  is  apparent  on  the  face  of 
the  bid.  Beaver  v.  Blind  Asylum, 
19  O.  S.  97;  State  ex  rel.  v.  Betts, 
4  C.  C.  85;  McGreevy  v.  Board,  20 
C.  C.  114;  State  ex  rel.  v.  Cincin- 
nati, 1  N.  P.  377. 

But  defects  in  the  form  of  the 
bid  might  be  waived.  Ross  v.  Board 
of  Education,  42  O.  S.  374. 

Where  a  bid  includes  items  not 
called  for  in  the  advertisement  for 
bids,  and  is  in  a  lump  sum,  it  will 
be  taken  as  a  bid  for  the  work 
called  for  and  no  more,  and  cannot 
be  reduced  by  estimating  the  cost 
of   items    not   mentioned   in   adver- 


373a 


THE    OHIO     MUNICIPAL     CODE. 


[Code  §  143 


tisement.     Boren  v.  Commr's,  21  0. 
S.  311. 

Where  the  advertisement  calls  for 
bids  for  new  pipe,  a  bid  for  second- 
hand pipe  cannot  be  accepted.  Lake 
Shore  Foundry  v.  Cleveland,  8  C. 
C.  671. 

The  bid  is  not  good  if  it  con- 
tains a  condition.  State  ex  rel.  v. 
Barnes,  35  O.  S.  136. 

But  where  a  bid  in  response  to  an 
advertisement  for  sale  of  a  natural 
gas  plant,  puts  a  separate  price  on 
the  part  outside  the  city,  the  part 
within  and  both  combined,  it  is  in 
reality  three  bids  and  an  award  on 
the  first  bid  will  not  be  invalidate^ 
by  a  condition  attached  to  the  last 
bid.  Kerlih  Bros.  v.  Toledo,  20  C. 
C.  603. 

A  bid  cannot  be  rejected  because 
the  granite  offered  is  not  from  one 
of  five  certain  quarries,  provided 
the  granite  offered  is  equal  in  qual- 
ity to  the  samples  as  called  for  in 
the  specifications.  State  ex  rel.  v. 
Nieman,  6  N.  P.  419. 

If  a  bid  fully  coresponds  wi 
the  specifications,  the  fact  that  the 
sample  required  to  accompany  it 
does  not  come  up  to  the  require- 
ment, will  not  invalidate  the  bid, 
for  the  sample  is  merely  the  bid- 
der's interpretation  of  the  require- 
ments. Many  v.  Cleveland,  19  C. 
C.  58;  but  see  Herrman  v.  State, 
11  C.  C.  504. 

The  fact  that  a  foreign  corpora- 
tion has  not  obtained  a  license  to 
do  business  in  Ohio,  will  not  make 
an  acceptance  of  the  bid  invalid. 
Fergus  v.  Columbus,  6  N.  P.  82. 

Provision  requires  separate  state- 
ment of  price  of  labor  and  material 
when  bid  embraces  both,  and  this 
provision  is  mandatory;  and  custom 
of    submitting  bids   otherwise,   can- 


not override  statutory  requirement. 
Columbus  v.  Board  of  Public  Ser- 
vice, 14  Dec.  715. 

(5)   Provision       mandatory. — 

The  requirement  of  a  preliminary 
advertisement  for  the  benefit  of  per- 
sons to  be  affected,  or  for  the  infor- 
mation of  the  public,  when  a  public 
contract  is  to  be  let,  is  mandatory 
and  contract  without  such  adver- 
tisement or  after  advertisement  for 
less  than  statutory  time  is  void. 
Welker  v.  Potter,  18  O.  S.  85;  Gas 
&  Water  Co.  v.  Elyria,  57  O.  S.  374; 
Lancaster  v.  Miller,  58  O.  S.  558; 
Buchanan  Bridge  Co.  v.  Campbell, 
60  O.  S.  406;  Wing  v.  Cleveland,  14 
B.  190;  Upington  v.  Oviatt,  24  O.  S. 
232;  McCloud  v.  Columbus,  54  O.  S. 
439. 

Sufficiency  of  advertisement. 

— Where  advertisement  omitted  cer- 
tain items  of  work,  but  these  were 
given  in  the  specifications  (referred 
to  in  the  advertisement)  the  adver- 
tisement is  sufficient.  Ampt  v.  Cin- 
cinnati, 17  C.  C.  516. 

Asking  for  bids  in  the  alternative 
and  providing  for  alterations,  will 
not  invalidate  an  advertisement  for 
bids.  Ampt  v.  Cincinnati,  17  C.  C. 
516. 

The  board  need  not  furnish  speci- 
fications to  bidders  in  any  greater 
detail  than  is  required  to  make  the 
matter  intelligent  to  persons  com- 
petent to  do  the  work,  where  the 
contract  is  of  the  character  involved 
in  building  an  extensive  water  works 
plant.  Yaryan  v.  Toledo,  28  C.  l 
259;  8  C.  C.   (N.  S.)    1. 

See  further  as  to  sufficiency  of 
advertisement  for  bids,  Clock  Co. 
v.  Commr's,  31  O.  S.  415;  Wing  v. 
Cleveland,  14  B.  190;  Cincinnati  v. 
Goodman,  5  Rec.  153. 


Code  §  143]      cities,     department  of  public  service. 


374 


What  requirements  legal. — A  pro- 
vision in  an  ordinance  that  bids 
shall  contain  a  stipulation  that 
common  laborers  are  to  receive  at 
least  $1.50  per  day,  and  have  an 
aight-hour  work-day,  was  held  voi  I 
as  violative  of  constitutional  guar- 
anties. State  ex  rel.  v.  Norton,  5 
N.  P.  183.  See  further,  Wheeling 
Bridge,  etc.,  Co.  v.  Gilmore,  8  C.  C. 
658;  State  v.  Lake  Erie  Iron  Co., 
25  B.  101. 

A  statute  providing  that  stipu- 
lations requiring  an  eight-hour  day 
in  work  under  public  contracts,- 
shall  be  inserted  in  all  such  con- 
tracts was  held  unconstitutional,  as 
in  conflict  with  §§1  and  19,  Art.  1, 
Const,  of  Ohio.  Cleveland  v.  Clem- 
ents Bros.  Co.,  67  O.  S.  197.  And 
when  stipulations  are  contained  in 
a  public  contract  they  are  of  no 
effect.    lb. 

The  advertisement  cannot  legally 
require  the  bidder  to  specify  the 
manufacturer  whose  materials  he 
intends  to  use.  Tucker  v.  Newark, 
19  C.  C.  1. 

As  to  requiring  a  bidder  to  pro- 
cure material  from  a  particular 
place,  such  as  stone  from  a  particu- 
lar quarry,  see  State  ex  rel.  v.  Am- 
lin,  13  Dec.  335. 

As  to  advertisement  calling  for 
use  of  a  patented  article,  see  §  45& 
of  the  Code,  p.  177.  See  under 
former  statutes,  Holbrook  v.  Toledo, 
28  C.  C.  284;  8  C.  C.  (N.  S.)  31 
(aff'd  73  0.  S.  400)  ;  Hastings  v. 
Columbus,  42  O.  S.  385. 

Length  of  advertising. — Under 
similar  statute,  see  Early  v.  Doe, 
16  How.  (U.  S.)  10;  Wing  v.  Cleve- 
land, 14  B.  190;  Miller  v.  Pearce, 
2  C.  S.  C.  R.  44;  Gilfillin  v.  Koke, 
1  W.  L.  M.  704 ;  Harmon  v.  Whitte- 


more,  1  B.  109;  Smith  v.  R.  R.  Co., 
8  N.  P.  1;  Simmons  v.  Toledo,  5 
C.  C.    124. 

(6)  Newspaper  means  newspa- 
per printed  in  the  English  language, 
in  the  absence  of  provisions  to  the 
contrary.  Cincinnati  v.  Bickett,  26 
O.  S.  49. 

It  may  be  a  newspaper  printed 
only  on  Sunday.  Hastings  v.  Co- 
lumbus, 42  O.  S.  585. 

The  requirement  of  publication 
"in  a  newspaper"  does  not  forbid 
additional  publications  in  other  pa- 
pers. This  is  not  a  squandering  of 
funds.  Wasem  v.  Cincinnati,  2  C. 
S.  C.  R.  84. 

(7)  Bonds. — Bidders  cannot  be 
required  to  furnish  a  written  agree- 
ment by  resident  freeholders  that 
they  are  able  to,  and  will  become 
sureties  on  thie  bidder's  bond. 
Moore  v.  Cincinnati,  15  B.  196. 

Resident  sureties  may  be  re- 
quired. Boren  v.  Comm'rs,  21  O. 
S.    311. 

Bond  cannot  be  deemed  insuffi- 
cient because  the  sureties  are  not  on 
the  tax  duplicate  for  a  sufficient 
amount,  though  in  fact  worth  many 
times  the  amount  required.  State 
ex  rel.  v.  Franklin  Co.,  1  C.  C.  194. 

Where  a  bond  is  required  to  ac- 
company the  bid,  ability  and  will- 
ingness to  give  it,  if  required,  are 
not  sufficient.  State  v.  Comm'rs,  17 
C.  C.  370. 

The  surety  on  the  bond  will  be 
presumed  to  have  executed  the  bond 
with  full  knowledge  of  the  terms  of 
the  contract  and  he  cannot  claim 
that  it  covered  only  a  part  of  the 
work.  Higgins  v.  Drucker,  22  C.  C, 
112. 


375 


THE    OHIO     MUNICIPAL     CODE. 


[Code  §  143 


(8)    Discretion  to  reject. — The 

right  to  reject  any  and  all  bids 
confers  a  discretion  that  cannot  be 
controlled  by  the  courts,  even 
though  exercised  arbitrarily  or  by 
mistake.  State  ex  rel.  v.  Cincin- 
nati, 3  C.  C.  542.  See  also  Strack 
v.  Ratterman,  18  C.  C.  36. 

Where  a  bidder  refuses  or  fails 
to  enter  into  the  contract  awarded 
him,  officers  may  award  it  to  an- 
other bidder.  McClain  v.  McKis- 
son,  15  C.  C.  517  (affirmed  35  E. 
295). 

Reconsideration   of   rejection. 

— After  rejection  of  all  bids,  coun- 
cil may  still  reconsider  the  action 
and  award  contract  to  one  of  orig- 
inal bidders.  McClain  v.  McKisson, 
15  C.  C.  517  (affirmed  35  B.  295). 
But  see  State  ex  rel.  v.  Cincin- 
nati, 3  C.  C.  542,  where  it  was  held 
that  after  a  rejection  by  mistake 
because  of  supposed  irregularities 
in  ordinance  and  a  re-enactment  of 
the  ordinance  in  corrected  form,  the 
award  could  not  be  made  to  a  bid- 
der under  the  original  ordinance, 
on  his  old  bid. 

Rescinding  contract. — Where  a 
contract  has  been  awarded  and  work 
done  and  money  expended  the  mu- 
nicipality has  no  right  unreason- 
ably to  rescind  the  contract.  Cin- 
cinnati v.  Edison  Elec.  Co.,  6  N. 
P.  416. 

A&  to  ground  for  rescission  of  con- 
tract, see  further  State  v.  Niemes, 
6  N.  P.  419. 

Where  the  city  has  unlawfully 
rescinded  the  contract  it  may  be 
required   by   mandamus   to   execute 


the  contract.  State  v.  Niemes,  6 
N.  P.  419. 

As  to  what  will  amount  to  a 
rescission  of  the  contract,  see  Rail- 
way Co.  v.  Carthage,  36  O.  S.  631. 

When  contract  complete. — At 

the  time  of  the  acceptance  of  the 
bid  and  notice  to  the  bidder  the 
contract  between  the  parties  is  com- 
plete and  no  additional  stipulations 
can  thereafter  be  inserted  in  the 
contract.  Comm'rs  v.  Rhoades,  26 
0.  S.  411. 

And  the  bidder  is  entitled  only  to 
a  contract  embracing  the  stipula- 
tions, etc.,  contained  in  the  records 
up  to  the  time  of  acceptance. 
Hughes  v.  Clyde,  41  O.  S.  339. 

(9)  Combination  among  bid- 
ders.— An  agreement  between  a  bid- 
der who  had  already  filed  his  bid 
and  a  bidder  who  was  about  to  file 
his  bid,  that  they  should  become 
partners  in  doing  the  work  if  the 
contract  should  be  awarded  to  either 
of  them,  was  held  not  an  unlawful 
combination  among  bidders.  Breslin 
v.  Brown,  24  0.  S.  565. 

When  a  contract  was  obtained  by 
a  collusion  among  bidders  it  does 
not  follow  that  the  contractor  may 
not  recover  for  performance  of  the 
contract,  where  the  city  authorities 
have  not  rescinded  the  contract  af- 
ter notice  of  the  collusion,  but  in- 
sisted on  performance.  Hubbard  v. 
Norton,  28  0.  S.  116. 

(10)      Alterations.— What 

changes  can  be  made  without  new 
bidding,  see  McMakin  v.  Cincinnati. 
7  N.  P.  203;  see  also  Ampt  v.  Cin- 
cinnati, 6  N.  P.  208  (aff'd  60  0.  S. 
621). 


Code  §  143]  cities,    department  of  public  service. 


376 


FORM  OF  ADVERTISEMENT  FOR  BIDS. 
Legal  Notice. 

Sealed  bids  will  be  received  by  the  Board  of  Public  Service  of  the  city  of 

,    State   of   Ohio,   at  the  office    of   said  board  until 

twelve    o'clock    noon,    ,    19 ,    for    furnishing   the 

necessary  labor  and  materials  for  (here  insert  general  statement  of  work 
to  be  done),  according  to  plans  and  specifications  on  file  in  said  office. 
Each  bid  must  contain  the  full  name  of  every  person  or  company  interested 

in  the  same,  and  be  accompanied  by  a  bond  in  the  sum  of  $ to 

the  satisfaction  of  the  board,  or  a  certified  check  on  some  solvent  bank,  as 
a  guaranty  that  if  the  bid  is  accepted,  a  contract  will  be  entered  into  and 
its  performance  properly  secured.  Should  any  bid  be  rejected  such  check 
will  be  forthwith  returned  to  the  bidder,  and  should  any  bid  be  accepted 
such  check  will  be  returned  upon  the  proper  execution  and  securing  of  the 
contract. 

(If  desired  add:     Bidders  are  required  to  use  the  printed  forms,  which 
will   be  furnished  on  application.) 

The  right  is  reserved  to  reject  any  and  all  bids. 

By  order  of  the  Board  of  Public  Service. 


19 Clerk. 

Note. —  If  such  an  improvement  as  is  referred  to  in  §  794  R.  S., 
infra,  page  380,  costing  $10,000  or  more,  is  to  be  made,  the  advertisement 
for  bids  must  comply  with  the  requirements  of  that  section,  and  the  bid 
and  contract  must  be  made  in  conformity  therewith. 

FORM  OF  BID. 

19.... 

The  undersigned  proposes  to  furnish  all  the  material  and  to  do  all  the 

work  necessary  in  the  construction  of ( here  state  the 

improvement  for  which  bid  is  made)   according  to  the  plans,  specifications 

and  profiles  prepared  by  the  city  of ,  State  of  Ohio, 

therefor,  and  in  strict  compliance  therewith,  and  under  the  direction  and 
to  the  approval  of  the  city  engineer  (or  other  proper  officer)  for  the  prices 
following,  for  materials  and  labor,  respectively,  to- wit: 


Excavation-, 
per  yard. 

Stone, 
per  perch, 
etc. ,  etc. 


Dollars 
(In  words) 


Cents 
In  words) 


Dollars 
(In  figures) 


Cents 
(In  figures) 


are  the  only  persons  or  companies  interested  in 


this  bid. 


Bidder. 


377  the  ohio  municipal  code.         [Code  §  143 

FORM  OF  BOND  ACCOMPANYING  BID. 

Know  all  men  by  these  presents,  that  we ,  of .  . , 

and ,  of ,  are  held  and  firmly  bound  unto  the 

city  of ,  State  of  Ohio,  in  the  sum  of 

dollars,  for  the  payment  of  which,  well  and  truly  to  be  made,  we  hereby 
jointly  and  severally  bind  ourselves,  -our  heirs,  successors,  executors  and 
administrators. 

The  condition  of  this  obligation  is   such  that  if  the  bid  or  proposal  of 

for ( here  state  work ) ,  made  this 

day  to  the  Board  of  Public  Service  of  the  city  of 

State  of  Ohio,  is  accepted  and  the  contract  awarded  to  the  above  named 

bidder,  and  the   said  bidder    shall  within days   after  notice 

of  said  award,  enter  into  a  contract  with  the  city  of , 

State  of  Ohio,  for  the  work  bid  upon,  and  shall  secure  the  performance  of 
the  same  by  bond  or  otherwise  as  may  be  prescribed,  to  the  satisfaction 
of  the  board  of  public  service  of  said  city,  then  this  obligation  shall  be  null 
and  void;  otherwise  to  be  of  full  force  and  virtue. 

Signed  at the day  of , 

19 


FORM  OF  RESOLUTION  ACCEPTING  BID. 

Be  it  Resolved,  by  the  Board  of  Public  Service  of  the  city  of 

State  of  Ohio:  That  the  bid  of for  (here  state  the  im- 
provement or  work  to  be  done)  is  the  lowest  and  best  bid  for  said  work, 
that  the  same  be  accepted,  and  that  a  contract  be  entered  into  with  said 
bidder  for  the  same,  in  the  name  of  the  city,  upon  said  bidder  giving  bond 

to  the  satisfaction  of  this  board  in  the  sum  of  $ within 

days  from  the  passage  of  this  resolution;  and  that  the  clerk  transmit  a 
copy  hereof  to  said  bidder. 

Adopted ,  19 


Attest:  President  of  Board  of  Public  Service. 

Clerk. 

FORM  OF  CONTRACT. 
Articles  of  Agreement 

Between   the   city   of ,   party   of  the   first  part,   and 

,  contractor,  party  of  the  second  part,  for 

(here  state  work  contracted  for). 

This  agreement,  made  and  entered  into  this day  of ., 

19. .  .  .,  by  and  between  the  city  of ,   State  of  Ohio, 

party  of  the  first  part,  and ,  contractor,  party  of  the 

second  part: 


Code  §  143]  cities,    department  of  public  service. 


378 


Witnesseth,  That  the  said  party  of  the  second  part  has  agreed  and  by 
these  presents  does  agree,  with  the  said  party  of  the  first  part,  for  the 
consideration  hereinafter  named,  to  furnish  all  the  materials  and  do  all  the 
work  of  whatever  kind  necessary  to  complete,  in  a  good,  substantial  and 
workmanlike  manner,  ready  for  use,  and  in  strict  accordance  with  the 
specifications  heretofore  prepared  therefor,  and  according  to  the  plans, 
profiles  and  drawings  on  file  in  the  office  of  the  chief  engineer  (or  other 
officer)  of  said  city,  and  subject  to  all  the  terms  and  conditions  of  said 
specifications,  and  to  the  approval  of  said  chief  engineer,  at  the  following 
rates : 


Excavation, 
per  yard. 

Stone, 
per  perch, 
etc.,  etc. 


Dollars 
(In  words) 


Cents 
(In  words) 


Dollars 
(In  figures) 


Cents 

(In  figures) 


The  foregoing  rates  include  all  labor  and  materials.  Said  party  of  the 
second  part  further  expressly  covenants  and  agrees  to  do  everything  re- 
quired to  be  done  by  said  specifications;  and  to  refrain  from  everything 
forbidden  by  said  specifications ;  that  the  power  reserved  to  or  con- 
ferred upon  any  person  or  body  in  said  specifications  may  be  exercised 
by  such  person  or  body,  and  that  the  right  is  reserved  to  the  board  to 
order  the  omission  of  or  addition  to  any  portion  c»f  the  work  or  materials 
called  for  by  the  plans  and  specifications  or  to  make  any  alterations  what- 
ever in  the  nature  of  the  work  or  materials  called  for  therein,  when  made 
according  to  law.  And  said  party  of  the  second  part  further  agrees  that 
the  amount  of  compensation  to  be  paid  for  any  additional  work  shall  be  at 
the  prices  fixed  in  this  contract,  if  such  additional  work  is  of  a  class  pro- 
vided for  in  the  bid  and  contract;  and  in  case  any  portion  of  the  work  is 
omitted,  to  waive  all  claims  for  damages  because  of  such  omission  and  not 
to  demand  any  pay  for  the  portion  of  work  so  omitted. 

In  case  the  contractor,  party  of  the  second  part,  shall  be  required  to  do 
any  work  of  a  class  not  provided  for  in  the  bid  and  this  contract,  said  party 
of  the  second  part  agrees  that  the  amount  to  be  allowed  him  shall  be  fixed 
by  written  agreement  between  the  said  contractor  and  the  said  board  before 
said  work  is  commenced,  and  in  case  of  failure  to  agree,  then  by  the  chief 
engineer  of  the  said  city. 

The  said  party  of  the  second  part  agrees  that  the  said  board  or  said  chief 
engineer  may  cause  any  work  or  materials  not  in  accordance  with  the 
specifications  and  this  contract  to  be  taken  up,  removed  and  replaced  at 
the  expense  of  the  contractor,  party  of  the  second  part. 

The  party  of  the  first  part  agrees  and  binds  itself,  upon  the  completion 
of  the  work  to  the  approval  of  the  chief  engineer  of  said  city,  to  pay  to  the 
said  party  of  the  second  part  the  amount  of  money  due  under  this  agree- 
ment.    Full  payment  will  be  made  upon  the  acceptance  of  the  work  or  as 


379  the  ohio  municipal  code.         [Code  §  143 

coon  thereafter  as  the  city  treasurer  of  said  city  shall  place  funds  at  the 
disposal  of  the  said  board. 

In  Witness  Whereof,  the  said  city  of ,.  State  of  Ohio, 

party  of  the  first  part,  has  caused  to  be  hereunto  affixed  its  corporate 
name  and  seal  by  its  Directors  of  Public  Service,  in  accordance  with  a 
resolution  duly  passed,  and  the  contractor,  party  of  the  second  part,  has 

hereunto    subscribed    t*is    name,    at ,    the    day   and 

year  aforesaid. 

The  City  of 

By    

[Seal.]  


Directors  of   Public   Service. 

Attest:  

Contractor. 

Clerk,   Board  of  Public  Service. 

Note. —  Instead  of  full  payment  upon  acceptance  of  work  provision  may 
be  made  for  the  payment  of  a  certain  percentage  upon  estimates  and  the 
retention  of  a  percentage  for  a  specified  time  as  a  guaranty  of  the  qual- 
ity of  the  work.  Provision  may  also  be  made  against  claims  for  extras 
unless  ordered  in  writing  by  the  board  at  a  price  agreed  upon  in  advance 
and  against  sub-letting  the  contract  or  assigning  payments  due  under 
it.  Stipulations  may  also  be  made  for  the  dates  of  beginning  and  com- 
pleting the  work  and  power  may  be  reserved  by  the  city  to  cancel  the 
contract  upon  violation  by  the  contractor  of  any  of  its  terms  or  condi- 
tions, and  for  the  completion  of  the  work  by  the  city  in  such  event, 
at  the  contractor's  expense.  Such  provisions  may  be  embodied  in  the 
specifications,  and  the  latter  made  a  part  of  the  contract. 

FORM  OF  BOND  FOR  COMPLETION  OF  CONTRACT. 

Know  all  men  by  these  presents :     That  we,    

principal,    and and ,    sureties,    are 

held   and  firmly   bound   unto   the  city    of ,   State  of 

Ohio,  in  the  sum  of  $ ,  to  be  paid  to  the  said  city,  its  suc- 
cessors or  assigns,  for  which  payment,  well  and  truly  to  be  made,  we 
hereby  bind  ourselves,  our  heirs,  successors,  executors  and  administrators, 
jointly  and  severally,   firmly  by  these  presents. 

Signed  by  us  this day  of ,  19 

The  condition  of  the  above  obligation   is   such   that   whereas  the   said 

has  on  this day  of ,  19 .... , 

entered  into  a  contract  with  said  city  for ( here  state 

work  contracted  for) ,  in  a  manner  in  said  contract  and  specifications  set 

forth ;  Now,  Therefore,  if  the  said shall  honestly  and 

faithfully  discharge  and  perform  all  and  singular  the  obligations  of  said 


Code  §  143]  cities,    department  of  public  service.         380 

contract,  then  this  obligation  shall  be  void;   otherwise  to  remain  in  full 
force  and  virtue. 


FORM  OF  AFFIDAVIT  OF  JUSTIFICATION  OF  SURETY. 

State  of  Ohio  ) 

County,   }ss' 

being  duly  sworn  deposes  and   says  that  he  is   a 

freeholder    in    the    county    of . . .  .' ,    State    of    Ohio,    and 

resides  at ,  in  said  county,  and  that  he  is  worth 

the  sum  of  $ ,   over  and  above  all  his  debts  and  liabilities, 

including  his  liabilities  as  bail,  surety,  or  otherwise,  and  over  and  above  all 
his  property  which  is  exempt  by  law  from  execution. 


Subscribed  and  sworn  to  before  me  this day  of , 

19 


Notary  Public. 

Sec.  794  R.  S.  [State,  county,  city,  and  other  officers  shall  re- 
quire separate  bids  for  contract  work  or  materials;  manner  in 
which  contracts  shall  and  shall  not  be  awarded.]  When  any  board 
of  commissioners,  board  of  trustees,  officers,  or  board  of  direct- 
ors of  the  state,  or  of  any  county,  township,  city,  town,  village, 
school  or  road  district  of  the  state,  or  of  any  public  institution 
belonging  to  the  same,  or  any  common  council  or  other  muni- 
cipal authority,  who  are  now  or  at  any  time  shall  be  authorized 
to  contract  or  engage  for  the  erection,  repair,  alteration,  or  re- 
building of  any  state-house,  court-house,  penitentiary,  jail,  in- 
firmary, asylum,  poor  house,  work  house,  school  house,  bridge, 
culvert,  or  other  public  building  or  improvement,  and  who 
are  now  or  hereafter  may  be  required  by  law  to  advertise  for 
and  receive  proposals  for  the  furnishing  of  materials  and  doing 
the  work  necessary  for  the  erection  of  the  same,  such  officer, 
board,  or  other  authority,  shall  require  separate  and  distinct 
proposals  1  to  be  made  for  furnishing  the  materials  or  doing 
the  work,  or  both,  in  their  or  his  discretion,  for  each  separate 
and  distinct  trade  or  kind  of  mechanical  labor,  employment, 
or  business  necessary  to  be  used  in  making  such  public  improve- 
ment; and  in  no  case  where  more  than  one  such  trade  or  kind 
of  mechanical  labor,  employment  or  business  is  required  to  fur- 
nish the  materials  for,  and  do  any  such  work,  shall  any  con- 
tract for  the  whole  of  the  job,  or  any  greater  portion  thereof 
than  is  embraced  on  [in]  one  trade  or  kind  of  mechanical  la- 


381 


THE    OHIO    MUNICIPAL    CODE.  [Code    §    143 


bor,  employment  or  business,  be  awarded  by  any  such  officer, 
board,  or  authority,  unless  the  separate  bids  do  not  cover  all 
the  work  and  materials  required,  or  the  bids  for  the  whole, 
or  for  two  or  more  kinds  of  work  or  materials  are  lower  than 
the  separate  bids  in  the  aggregate ;  and  in  all  cases  the  con- 
tracts for  the  doing  of  the  work  belonging  to  each  separate 
trade,  or  kind  of  mecnanical  labor,  employment  or  business, 
or  the  furnishing  of  the  materials  for  the  same,  or  both,  at  the 
discretion  of  said  officer  or  board,  or  other  authority,  shall  be 
awarded  to  the  lowest  and  best  separate  bidder  therefor,  and  a 
contract  for  the  same  shall,  in  all  cases,  be  made  directly  with 
him  or  them  by  said  officer,  board,  or  other  authority,  in  the 
same  manner  and  upon  the  same  terms,  conditions,  and  limita- 
tions, as  to  giving  bond,2  with  security  and  otherwise,  as  are 
now  prescribed  by  law,  unless  the  same  is  let  as  a  whole,  or  to 
bidders  for  more  than  one  kind  of  work  or  materials,  as  afore- 
said; but  the  provisions  of  this  section  shall  not  apply  to  the 
erection  of  buildings  and  other  structures  of  a  less  cost  than  ten 
thousand  dollars.  [1888,  April  13:  85  v.  218;  Rev.  Stat. 
1880;  74  v.  186,  §  1.] 

(1)  Separate  bids  for  each  dis= 
tinct  part. —  Separate  prices  for 
labor  and  material  held  not  neces- 
sary in  case  of  a  bid  for  new  pump- 
ing machinery.  Such  a  bid  could 
not  be  thus  split  up.  Fergus  v. 
Columbus,  6  N.  P.  82,  91. 

So  of  a  bid  for  heating  and  ven- 
tilating systems.  State  v.  Bd.  of 
Education,  14  C.  C.   15. 

Where  the  contract  calls  for  bids 
on  a  number  of  details  of  the  work, 
the  labor  as  well  as  the  material  to 
be  separately  priced  on  each,  and 
the  price  of  the  labor  and  material 
combined  to  be  given,  the  bidder 
whose  total  was  the  lowest  is  not 
on  that  account  entitled  to  the  con- 
tract for  all  the  items.  State  ex 
rel.  v.  Commissioners,  36  B.  176. 
See  furher  State  v.  Commissioners, 
39  O.  S    188. 

Section  794  R.  S.  does  not  apply 
where  the  contract  is  let  for  the 
entire  job,  under  §  799  R.  S.  State 
v    Commissioners,  39  O.  S.  188. 

Where  the  proposals  made  in  com- 
pliance with  the  terms  of  the  ad- 
vertisement of  the  official  board  let- 
ting the  contract,  contain  separate 
bids  for  furnishing  material  and  do- 
ing work  for  each  separate  trade  or 
kind  of  work,  though  they  cover  the 
entire  work  to  be  done,  are  within 
the  terms  of  section   794,  and  are 


bids  not  for  the  work  as  a  whole 
but  for  the  separate  items  thereof, 
and  a  bidder  will  not  be  entitled  to 
a  contract  for  the  whole  work  for 
the  reason  that  the  total  of  his  sep- 
arate bids  covering  all  the  details 
of  the  work  is  less  than  the  total  of 
the  separate  bids  of  any  other  bid- 
der. State  ex  rel.  v.  Hanna,  13 
Dec.  321. 

Joint  bids. —  A  contract  covering 
work  and  materials  included  within 
two  or  more  of  the  different  trades 
or  mechanical  occupations  may  be 
awarded  to  a  single  bidder  bidding 
jointly  upon  the  same,  whenever 
such  joint  bid  is  less  than  the  ag- 
gregate of  lowest  separate  bids  cov- 
ering the  work  and  materials  in- 
cluded in  the  same  trade  or 
mechanical    occupation.      lb. 

Contract  for  whole  work  can  be 
awarded  to  a  bidder  upon  a  single 
bid,  only  when  separate  bids  do  not 
cover  all  the  trades  or  mechanical 
occupations,  or  where  the  separate 
bids  covering  all  the  trades  whether 
being  as  many  in  number  as  the  dif- 
ferent trades  or  less  by  reason  of 
joint  bids  covering  two  or  more 
trades,  being  lower  than  the  sepa- 
rate ones,  are  in  the  aggregate  more 
than  a  single  bid  for  the  entire  job. 
76.;  see  also  Huston  v.  Franklin, 
15  Dec.  231;  2  N.  P.   (N.  S.)   582. 

Remedy    of    bidder.— The   only 


Code  §§  143a,  144]  cities,   dep't  oe  public  service.  381a 

remedy  by  which  a  person  making  party   to    whom    contract   has   been 

a  bid  alleged  to  be   the  lowest  re-  awarded    from    proceeding    further 

sponsible  bid,  can  prevent  award  of  with   work,    set   aside   contract   and 

contract    to    another,    is    injunction  refer    matter    back    to    officials    for 

to    restrain    officials    from    making  further  proceedings.     lb. 

such    contract,    and    requiring    the  After  work   is   already  completed 

matter  to  be  referred  back  for  pro-  and  paid  for,  no  right  of  action  for 

ceedings  according  to  statute;  man-  damages  exists  on  part  of  plaintiff 

damus  will  not  lie  to  compel  award  claiming    to    be    lowest    responsible 

to   plaintiff.     Akron   v.    France,   24  bidder.    lb. 

C.  C.  63,  4C.  C.  (N.  S.)  496.  (2)   Bonds    of    bidders.— See    § 

Where    award    is     already    com-  799a  R.  S.  under  Officers  in  Part 

menced  the  only  remedy  is  to  enjoin  II. 

Sec.    143a.     [May   contract  for  furnishing1  of  water  power.] 

That  the  directors  of  the  board  of  public  service,  of  all  munic- 
ipal corporations,  by  and  with  the  consent  of  the  councils  of 
such  municipal  corporations,  are  hereby  empowered  to  enter 
into  and  contract  with  the  owners  of  any  hydraulic  or  other 
natural  or  artificial  watercourse  to  furnish  water  power  for 
the  propelling  of  machinery  now  or  hereafter  to  be  [erected] 
directed  in  the  waterworks,  electric  light  or  gas  plants  of  such 
municipal  corporations,  or  to  acquire  by  purchase  or  transfer 
from  others  owning  such  rights,  such  water  power  privileges, 
and  for  the  purpose  of  carrying  into  effect  such  contracts  or 
leases,  the  said  directors  of  public  service  may  enter  into  such 
contracts  for  any  term  of  years,  and  the  provisions  of  section 
143  and  of  section  45  of  this  act  herein  referred  to  and  to 
which  this  is  supplemental,  shall  not  apply.  [1904,  April  25, 
97  v.  320.] 

Sec.  144.  [How  contracts  to  be  made.]1  All  contracts  made  by 
the  directors  of  public  service  shall  be  executed  by  them  in  the 
name  of  the  city,  and  a  duplicate  copy  shall  be  filed  in  the  office 
of  the  department  of  public  service,  and  a  copy  with  the  audi- 
tor of  the  city,  and  no  liability  shall  be  created  against  the  city 
as  to  any  matters  under  the  supervision  of  said  departments 
except  by  its  express  authority.2  No  resolution  or  order  shall 
be  adopted  unless  concurred  in  by  a  majority  of  the  directors 


THE    OHIO    MUNICIPAL    CODE.  -[Code  §145 

of  public  service,  and  no  director  of  public  service  or  officer 
or  employe  of  said  department  shall  be  interested  in  any  con- 
tract under  its  supervision.3  The  directors  of  public  service 
shall  keep  a  record  of  their  proceedings,  a  copy  of  which, 
certified  by  the  clerk  of  the  department,  shall  be  competent 
evidence  in  all  courts. 

( 1 )  Old  sections. —  Compare  old  make  for  the  parties  the  contract 
§§  2209,  2216,  2217,  2218,  2221  R.  that  might  legally  be  made.  Chil- 
S.    (repealed).  licothe  v.  Gas  &  Fuel  Co.,  8  N.  P. 

(2)  Defective  contract.— Where  88. 

the  contract  was  not  made  in  com-  (3)   Officer   interested    in   con- 

pi  iance  with  law,  it  is  simply  void  tract. —  See  note  (3)  to  §  45  of 
and  the  court  has  no   authority  to       the  Code,  page  176.. 

(9)  Employes  in  Department  of  Public  Service. 
Sec.  145.  [Employment  of  superintendents,  inspectors,  clerks, 
laborers,  etc.]  1  The  directors  of  public  service  may  employ 
such  superintendents*,  inspectors,  engineers,  harbor  masters, 
clerks,  laborers,  and  other  persons,  as  may  be  necessary  for  the 
execution  of  the  powers  and  duties  of  this  department,  and 
may  establish  such  subdepartments  for  the  administration  of 
affairs  under  said  directors  as  may  be  deemed  proper.2  The 
compensation  and  bonds  of  all  persons  appointed  or  employed 
by  the  department  of  public  service  shall  be  fixed  by  said  di- 
rectors, and  no  person  shall  be  removed  except  for  cause  sat- 
isfactory to  said  directors,  or  a  majority  of  them.3 

( 1 )  Old  section. —  Compare  old  suspend  any  subordinate  officers  or 
§  2211  R.  S.,  repealed.  employes  in  its  department.     §  129 

(2)  Watchmen. —  Under  former      of  the  Code. 

statutes  it  was  held  that  such  a  Delegating  power. —  Such  a  board 
board  as  this,  having  under  its  care  cannot  delegate  its  power  to  re- 
property  needing  the  services  of  move  employes.  Kelley  v.  Cincin- 
watchmen  in  addition  to  the  gen-  nati,  7  N.  P.  360. 
eral  police  patrol,  would  have  the  Suspension  of  employes  by  subor- 
power  to  employ  such  watchmen  amate  officers. —  Subordinate  offi- 
as  were  necessary.  State  ex  rel.  v,  cers,  such  as  the  superintendent  of 
Boy  den,  4  N.  P.  322.  .the  street  cleaning  department,  who 

(3)  Power  of  removal. —  Board  may  have  a  large  number  of  men 
has   exclusive  power   to  remove   or  under  him,  must  have,  from  the  ne- 


Code  §146]   cities,  department  of  public  safety. 

cessities  of  the  case,  power  to  sum-  suspension  can  last  only  until  re- 
mar  ily  suspend  for  insubordination  ported  to  board  and  acted  upon  by 
or  dereliction   of  duty.     But    such      it.     Kelley  v.  Cincinnati,  supra. 


(c)  DEPARTMENT  OF  PUBLIC  SAFETY. 

(1)   Organization  and  general  'powers. 

Sec,  146.  [Department  of  public  safety;  directors,  number,  ap- 
pointment, qualifications,  terms,  etc.]  1  In  every  city  there  shall 
be  a  department  of  public  safety,  which  shall  be  administered 
by  two  or  four  directors,  as  council  shall,  by  resolution  or  or- 
dinance,2 determine,  provided,  that  when  the  number  of  di- 
rectors has  been  fixed  by  council,  the  same  shall  not  be  changed 
during  the  term  for  which  any  one  of  said  directors  has  been 
appointed.  The  directors  of  public  safety  shall  be  electors 
of  the  city,  well  known  for  their  intelligence  and  integrity, 
and  shall  be  appointed  by  the  mayor,  with  the  advice  and  con- 
sent of  two-thirds  of  all  the  members  elected  to  council,3  for 
terms  of  four  years;  provided,  that  if  the  number  of  said  di- 
rectors is  two,  then  at  the  first  appointment  hereunder,  one 
director-  shall  be  appointed  for  four  years,  and  one  for  two 
years;  and  thereafter  as  the  terms  expire,  one  director  shall 
be  appointed  for  four  years ;  and  if  the  number  of  said  direct- 
ors is  four,  then  at  the  first  appointment  hereunder,  two  shall 
be  appointed  for  two  years  and  two  for  four  years,  and  there- 
after as  the  terms  expire  two  directors  shall  be  appointed  for 
four  years,  and  the  mayor  shall  have  power  to  fill  all  vacan- 
cies for  unexpired  terms,  in  like  manner  as  original  appoint- 
ments are  made.  Not  more  than  half  of  the  number  of  di- 
rectors of  public  safety  shall  belong  to  the  same  political 
party 4  and  in  making  appointments  or  filling  vacancies  the 
mayor  shall  preserve  this  requirement; 

[When  appointments  not  made  and  confirmed  within  30  days, 
governor  to  appoint.]    provided,  however,  that  if  said  original 


384 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §146 


appointments  are  not  made  and  confirmed  within  thirty  days 
from  and  after  the  time  herein  fixed  for  said  appointments, 
and,  if  any  vacancy  is  not  filled  within  thirty  days  from  the 
date  when  said  vacancy  occurs  and  in  the  manner  herein  spe- 
cified, then  and  in  either  such  event  the  governor 5  of  the 
state  of  Ohio  shall  make  said  original  appointments  or  fill 
such  vacancy  in  the  manner  provided  herein. 

[Bonds;  compensation;  organization.]  The  bonds  and  com- 
pensation of  the  directors  of  public  safety  shall  be  fixed  by 
council.6  The  directors  shall  organize  as  a  board,  which  shall 
be  known  as  the  "  board  of  public  safety."  One  of  their  num- 
ber shall  be  chosen  each  year  to  act  as  president,  and  it  shall 
require  a  majority  of  the  members  to  constitute  a  quorum  or 
to  pass  any  measure  or  authorize  any  act. 


(1)  Old  sections. —  Compare  old 
§§  (1545-40)  R.  S.  (Director  of 
Police,  Cleveland);  (1545-48)  R.  S. 
(Director  of  Fire  Service,  Cleve- 
land) ;  (1545-134)  R.  S.  (Director 
of  Public  Safety,  Columbus)  ; 
(1545-208)  R.  S.  (Police  and  Fire 
Board,  Springfield);  (1545-270), 
(1545-275)  R.  S.  Board  of  City 
Commissioners,  Akron  and  Youngs- 
town)  ;  (1545-296)  R.  S.  (Depart- 
ment of  Police,  and  Department  of 
Public  Safety,  Hamilton);  §§  1870 
and  2436  R.  S.  (Police  Commission- 
ers and  Fire  Trustees,  Cincinnati), 
all  repealed. 

(2)  Form  of  resolution  or  ordi= 
nance,  fixing  or  changing  the  num- 
ber of  directors  of  public  safety; 
see  that  given  under  §  117  of  the 
Code,  page  307. 

Constitutionality  of  provision 
authorizing  councils  to  determine 
number  of  directors  of  public  safe- 
ty, see  Zumstein  v.  Mullen  et  al., 
48  B.,  177,  67  O.  S.   382. 

(3)  Consent  of  council  to  ap- 
pointment   must   be   manifested    by 


some  affirmative  act  and  not  mere 
acquiescence.  State  ex  rel.  v.  Dar- 
by, 12  C.  C.  235  (aff'd  52  O.  S.  611). 

(4)  Political  qualification. — See 
State  ex  rel.  v.  Ratterman,  58  O.  S. 
731. 

(5)  Appointment  by  governor. 
—  Validity  of  act  authorizing  ap- 
pointment of  police  board  by  gov- 
ernor upheld  in  State  v.  Covington, 
2!)  O.  S.,  102;  State  v.  Baughman, 
38  O.  S.,  455.  But  see  State  ex  rel 
Knisely  et  al.  v.  Jones  et  al.,  66 
O.  S.  453,  where  a  special  act  on 
this  subject  was  held  void,  and 
where  the  question  as  to  whether 
such  appointments  by  the  governor 
violate  the  principles  of  local  self- 
government  or  involve  the  confer- 
ring unon  the  governor  of  powers 
which  he  is  not  competent  to  re- 
ceive and  exercise,  is  raised  but 
not  determined.  See  also  State  ex 
rel.  v.  Commas,  54  O.  S.  333. 

(6)  Form  of  ordinance  fixing 
salaries  and  bonds;  see  that  given 
under   §   227  of  the  Code. 


Code  §§147,  148]   cities.  dep?t  of  public  safety.  385 

Sec.  147.  [General  powers  and  duties.]1  All  powers  and 
duties  connected  with  and  incident  to  the  appointment,  regula- 
tion and  government  of  the  police  and  fire  departments  of  the 
city,  together  with  the  control  of  the  fire  alarm  telegraph  and 
telephone  systems  shall  be  vested  in  the  mayor  and  the  board 
of  public  safety  as  hereinafter  provided.  The  mayor  shall  be 
the  chief  conservator  of  the  peace  within  the  limits  of  the 
corporation.  The  directors  of  public  safety  shall  make  all 
contracts  with  reference  to  the  management  of  the  police  and 
fire  department,  subject  to  the  restrictions  hereinafter  im- 
posed.2 

(1)   Old  sections  relating  to  po-  sections  relating  to  villages.      (See 

lice  boards  and  officers  were  former-  §  207  of  the  Code.) 

ly  contained  in  Chap.  5,  Div.  5,  Ti-  (2)    Contracts. —  See   §    154,   in- 

tle   XII.,  R.   S.,   §§   1870  to    (2030-  fra,  page  391. 

23 )    R.    S.,   all    repealed.     And    see  Employing     attorney. —  It    was 

note  (1)  under  §  146,  supra.  held,    under    former    statutes,    that 

Old   sections   relating  to   the   fire  the   board   having  charge   of   police 

department  were   formerly   contain-  department  may  employ  such  coun- 

ed   in  Chap.   2,   Div.   8,   Title  XII.,  sel   as    it    may    select,    when   neces- 

R.   S.,   §§   2436  to    (2477-91)    R.   S.  sary  to  preserve  or  secure  the  fund 

all  repealed,  except   §§    2470  R.    S.  entrusted   to   its  control.     Yaple  v. 

and  2471   to   2475   R.   8.,  inclusive,  Commissioners,    2    C.    C.    406,    aff'd 

Which    are   re-enacted   in   the   Code  25  B.,  336. 

Sec.  148.  [Police  department;  emergency  policemen.]  The 
chief  of  police  shall  be  the  executive  head  of  the  department, 
under  the  direction  of  the  mayor ;  provided,  that  the  chief  shall 
have  exclusive  control  of  the  stationing  and  transfer  of  all 
patrolmen  and  other  officers  and  employes  in  the  department, 
under  such  general  rules  and  regulations  as  may  be  prescribed 
by  the  board  of  public  safety;  and  provided,  further,  that  in 
case  of  riot  or  other  like  emergency,  the  mayor  shall  have 
power  to  appoint  additional  patrolmen  and  officers  for  tem- 
porary service  (who  need  not  be  in  the  classified  list  of  such 
department),  the  number  of  which  shall  be  first  determined  by 
resolution   of  the  board  of  public  safety,   but  the  length   of 


386  the  ohio  municipal  code.  [Code  §149 

time  for  which  such  additional  officers  or  patrolmen  shall  be 
employed  shall  be  limited  to  the  time  during  which  such 
emergency  may  exist. 

Sec.  149.  [Police  department.]1  The  police  department  of 
each  city  shall  be  composed  of  a  chief  of  police  and  such  in- 
spectors, captains,  lieutenants,  sergeants,  corporals,  detectives, 
patrolmen,  and  other  police  court  officers,  station  house  keep- 
ers, drivers,  and  substitutes  as  shall  have  been  provided  by 
ordinance  or  resolution  of  council. 

The  directors  of  public  safety  shall  have  the  exclusive  man- 
agement and  control  of  all  other  officers,  surgeons,  secretaries, 
clerks  and  employes  as  shall  have  been  provided  by  ordinance 
or  resolution  of  council. 

The  directors  of  public  safety  may  commission  private  po- 
licemen who  may  not  be  in  the  classified  list  of  said  depart- 
ment under  such  rules  and  regulations  as  council  shall  pre- 
scribe. 

The  chief  of  police  shall  be  appointed  from  the  classified 
list  of  such  department.2 

(1)  Organizing  police  and  fire  sistant  marshals,  firemen,  telephone 
departments. —  The  new  Code  re-  and  telegraph  operators  as  council 
quires  the  councils  to  fix  the  num-  determines  in  its  ordinance.  Forms 
ber,  salaries  and  bonds  of  all  of-  for  these  two  ordinances  are  given 
ficers  and  other  members  of  the  po-  hereunder  and  under  §  150  infra. 
lice  and  fire  departments,  and  the  Council  may  also  provide  for 
departments  so  established  are  to  other  officers,  surgeons,  secretaries, 
be  classified  for  appointments  there-  clerks  and  employes  under  the  board 
in  by  the  board  of  public  safety.  of  public  safety,  and  fix  their  sal- 
(§§  149,  150  and  153  of  the  Code.)  aries  and  bonds.  §§  149  and  150 
The  police  department  must  con-  of  the  Code.  Whether  or  not 
sist  of  a  chief  of  police,  and  such  these  latter  positions  are  also 
inspectors,  captains,  lieutenants,  to  be  regarded  as  within  either  the 
sergeants,  corporals,  detectives,  pa-  police  or  fire  departments  proper 
trolmen,  police  court  officers,  sta-  and  a  part  of  the  classified  serv- 
tion  house  keepers,  drivers  and  sub-  ice  is  not  clear.  (See  §§  149,  150, 
stitutes  as  council  determines  in  its  153,  158,  162  and  167  of  the  Code.) 
ordinance.  The  fire  department  It  is  certain  that  no  officer,  sec- 
must  consist  of  a  chief  of  the  fire  retary  or  other  employe  serving  in 
department,  and  such  marshals,  as-  the  police  or  fire  department  of  any 


Code  §  150]   cities,     department  of  public  safety.     387 

city  at  the  time  of  the  passage  of  (2)    Appointment    of    Chief. — 

the  new  Code  can  be  removed  or  By  the  words  "  classified  list "  ia 
reduced  in  rank  or  pay,  except  in  meant  the  register  prescribed  by 
accordance  with  the  provisions  of  Section  164.  State  ex  rel.  v.  Wy- 
the Code,  whether  his  position,  un-  man,  49  B.  496. 
der  the  new  organization,  be  within  See,  as  to  right  to  appoint  super- 
the  classified  service  or  not.  See  intendent  of  police  under  old  depart- 
further,  note  under  §  167  of  the  ment  as  chief  of  police  under  new 
Code,  infra.  code,  notes  under  Section  167  infra. 


FORM  OF  ORDINANCE  ORGANIZING  POLICE  DEPARTMENT. 
Ordinance  No 

Fixing  the  number,  salaries  and  bonds  of  members  of  the  police  department. 

Be  it  ordained  by  the  council  of  the  city  of , 

State  of  Ohio: 

Sec.  1.     That  the  police  department  of  the  city  of 

shall  be  composed  of  the  following  officers  and  other  members,  who  shall 

receive  the  respective  salaries  hereinafter  provided,  payable 

out  of  the  police  fund  of  the  city,  and  shall  give  the  respective  bonds  herein- 
after required: 

1.     A  chief  of  police,  who  shall  receive  $ per  annum,  and 

ihall  give  bond  in  the  sum  of  $ 

2 inspectors  of  police,  etc. 

3 f captains,  etc. 

4 lieutenants,  etc. 

5 sergeants,  etc. 

6 corporals,  etc. 

7 detectives,  etc. 

8 patrolmen,  etc. 

(Enumerating  such  force  as  is  desired  by  council.) 

Sec.  2.  The  police  department  as  constituted  herein  shall  be  classified, 
tor  appointments  thereto,  by  the  board  of  public  safety,  as  required  by  law. 

Sec.  3.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law,  but  shall  not  affect  the  tenure  of  office 
or  employment  or  the  rank  or  pay  of  any  officer,  secretary,  clerk,  sergeant, 
patrolman,  or  other  employe  now  serving  in  the  police  department  of  this 
city. 

Passed 19 


Attest:  President  of  Council. 


Clerk. 

Note. — An  ordinance  providing  for  other  officers,  surgeons,  secretaries, 
clerks,  etc.,  under  the  board  of  public  safety,  as  authorized  by  the  second 
paragraph  of  §  149  of  the  Code,  may  be  adapted  from  the  above. 

Sec.  150.  [Fire  department;  emergency  firemen.]  The  chief  of 
the  fire  department  shall  be  the  executive  head  of  the  depart- 
ment, under  the  direction  of  the  mayor;  provided,  that  the 
chief  shall  have  exclusive  control  of  the  stationing  and  trans- 


388  the  ohio  municipal  code.  [Code  §150 

ferring  of  all  firemen  and  other  officers  and  employes  in  the 
department,  under  such  general  rules  and  regulations  as  may- 
be prescribed  by  the  board  of  public  safety;  and  provided 
further  that  in  case  of  riot  or  other  like  emergency  the  mayor 
shall  have  power  to  appoint  additional  firemen  and  officers  for 
temporary  service  (who  need  not  be  in  the  classified  list  of 
such  department),  the  number  of  which  shall  be  first  de- 
termined by  resolution  of  the  board  of  public  safety,  but 
the  length  of  time  for  which  such  additional  officers  or 
firemen  shall  be  employed  shall  be  limited  to  the  time  during 
which  such  emergency  may  exist.  The  fire  department  of 
each  city  shall  be  composed  of  a  chief  of  the  fire  department 
and  such  marshals,  assistant  marshals,  firemen,  telephone  and 
telegraph  operators  as  shall  have  been  provided  by  resolution 
or  ordinance  of  council.  The  directors  of  public  safety  shall 
have  the  exclusive  management  and  control  of  such*  other  offi- 
cers, surgeons,  secretaries,  clerks,  and  employes  as  shall  have 
been  provided  by  ordinance  or  resolution  of  council. 

The  chief  of  the  fire  department  shall  be  appointed  from 
the  classified  list  of  such  department. 

FORM  OF  ORDINANCE  ORGANIZING  FIRE  DEPARTMENT. 

Ordinance  No.  . 

Fixing  the  number,  salaries  and  bonds  of  members  of  the  Fire  Department. 

Be    it    ordained    by    the    Council    of    the    city    of , 

State   of  Ohio: 

Section  1.     That  the  fire  department  of  the  city  of 

shall  be  composed  of  the  following  officers  and  other  members,  who  shall 

receive  the  respective  salaries  hereinafter  provided,  payable , 

out  of  the  fire  fund  of  the  city,  and  shall  give  the  respective  bonds  herein- 
after   required : 

1.     A  chief  of  the  fire  department,  who  shall  receive  $ per  aa- 

num,  and  shall  give  bond  in  the  sum  of  $....' 

2 Marshals,     etc. 

3.      Assistant  marshals,   etc. 

4 Firemen,   etc. 

5 Telephone    and    telegraph    operators,    etc. 

(Enumerating  such  force  as  is  desired  by  council.) 


Code  §§151,  152]   cities,  dep't  of  public  safety.  389 

Section  2.  The  fire  department  as  constituted  herein  shall  be  classified, 
for  appointments  thereto,  by  the  Board  of  Public  Safety,  as  required 
by  law. 

Section  3.  This  ordinance  shall  take  effect  and  be  in  force  from  and 
after  the  earliest  period  allowed  by  law,  but  shall  not  affect  the  tenure 
of  office  or  employment  or  the  rank  or  pay  of  any  officer,  secretary,  clerk, 
or  other  employe  now  serving  in  the  fire  department  of  this  city. 

Passed ,  19 

Attest : 


Clerk.  President   of   Council. 

Note. —  An  ordinance  providing  for  other  officers,  surgeons,  secretaries, 
clerks,  etc.,  under  the  Board  of  Public  Safety,  as  authorized  by  the  last 
sentence  of  the  first  paragraph  of  §  150  of  the  Code,  may  be  adapted 
from  the  above. 

Sec.  151.  [General  duties  of  police  and  fire  departments.]  t^ 
police  force  shall  preserve  the  peace,  protect  persons  and  prop- 
erty and  obey  and  enforce  all  ordinances  of  council  and  all 
criminal  laws  of  the  state  and  the  United  States.  The  fire 
department  shall  protect  the  lives  and  property  of  the  people, 
in  case  of  fire,  and  both  the  police  and  fire  departments  shall 
perform  such  other  duties,  not  inconsistent  herewith,  as  coun- 
cil may  by  ordinance  prescribe.1  The  police  and  fire  departs 
ments  in  every  city  shall  be  maintained  upon  the  merit  sys- 
tem, as  provided  in  this  act 

(1)  Municipal  power. — The  Columbus,  58  O.  S.  538;  Cincin- 
police  department  of  a  municipality  nati  v.  Cameron,  33  O.  S.  336;  Day- 
derives  its  authority  from  the  state;  ton  v.  Pease,  4  O.  S.  80,  97-99; 
and  when  such  municipality  is  not  Thomas  v.  Findlay,  6  C.  C.  241;  see 
expressly  or  by  necessary  implica-  also  Blunk  v.  Dennison  Co.,  71  0.  S. 
tion    authorized    to    do    so,    it    can  250. 

neither  enlarge  nor  restrict  the  du-  Fire  department  is  not  subject  to 

ties  of  such  department  or  its  offi-  a    speed   ordinance.     Toledo   Ry.    & 

cers   as   defined   by  the   legislature.  L.  Co.  v.  Ward,  25  C.  C.  399   (aff'd 

Cleveland  v.  Payne,  72  O.  S.  347.  71  O.  S.  492). 

Municipal   liability. — The  pow-  Likewise,   the  power  to  establish 

er  to  establish  and  control  a  fire  de-  a    police    department    and    regulate 

partment  is  governmental  in  its  na-  the  police,  is  governmental,  and  mu- 

ture,  and  a  municipality  is  not  lia-  nicipality   is   not   liable   for   failure 

ble  for  damages  resulting  from  its  to    provide    sufficient    police    protec- 

failure  to  provide   agencies  for  ex-  tion,  or  for  the  negligence  of  police 

tinguishing  fires,  or  for  negligence  officers.     Western  College  v.  Cleve- 

of   the  employes   or   officers   in  the  land,    12    O.    S.    375;    Robinson    v. 

fire    department.      Wheeler   v.    Cin-  Greenville,    42    O.    S.    625;    Alvord 

cinnati,    19  O.   S.    19;    Frederick  v.  v.  Richmond,  3  N.  P.   136. 

Sec.  152.  [  Power  of  chief  of  police  and  chief  of  fire  department 
as  to  suspension  of  deputies,  officers  or  employes.  1 *   The  chief  of 


390  the'  ohio,  municipal  code.  [Code  §152 

the  police  and  the  chief  of  the?  fire  department  shall  have  ex- 
clusive right  to  suspend  any  of  the  deputies,  officers  or  em- 
ployes in  his  respective  department  and  under  his  manage- 
ment and  control,  for  incompetence,  gross  neglect  of  duty, 
gross  immorality,  habitual  drunkenness,  failure  to  obey  orders 
given  him  by  the  proper  authority,  or  for  any  other  reasonable 
and  just  cause.2 

[Procedure  thereupon.]  If  any  such  employe  be  suspended 
as  herein  provided,  the  said  chief  of  police  or  the  chief  of  the 
fire  department,  as  the  cas,e  may  be,  shall  forthwith  in  writing, 
certify  such  fact,  together  with  the  cause  of  such  suspension, 
to  the  mayor,  who  shall  within  five  days  from  the  receipt  of 
the  same,  proceed  to  inquire  into  the  cause  of  such  suspen- 
sion and  render  his  judgment  thereon  and  his  judgment  in 
the  matter  shall  be  final,  except  as  otherwise  provided  in  this 
act. 

[Power  of  mayor  as  to  suspension  of  chief  of  police  or  chief  of 
fire  department.]  The  mayor  shall  have  the  exclusive  right 
to  suspend  the  chief  of  the  police  department  or  the  chief  of 
the  fire  department  for  incompetence,  gross  neglect  of  duty, 
gross  immorality,  habitual  drunkenness,  failure  to  obey  orders 
given  him  by  the  proper  authority  or  for  any  other  reasonable 
and  just  cause.3  In  the  event  that  either  the  said  chief  of  po- 
lice or  chief  of  the  fire  department  shall  be  suspended  as  here- 
in provided  it  shall  be  the  duty  of  the  mayor  to  forthwith  cer- 
tify such  fact,  together  with  the  cause  of  such  suspension,  to 
the  board  of  public  safety,  which  shall  within  five  days  from 
and  after  the  date  of  the  receipt  of  such  notice  proceed  to 
hear  said  charges  and  render  its  judgment  thereon,  which  shall 
be  final. 

(1)   Old    section. —  Compare  old      of  police   or   any   officer   appointed 
§    1749    R.    Sv    giving    the    mayor      by  the  mayor. 
power    to    suspend   any    lieutenant  (2)   Power. —  Even  where  an  oflft- 


Code  §§  153, 154]  cities,    department  op  public  service.      391 


:-er  is  not  expressly  given  power 
to  suspend  subordinates,  he  may 
have,  from  necessity,  implied  power 
to  suspend  for  a  reasonable  time. 
Kelley  v.  Cincinnati,  7  N.  P.  360. 

Where  city  has  failed  to  provide 
necessary  funds,  this  is  a  valid 
ground  for  suspension  of  member  of 
lire  department.  Osborne  v.  Colum- 
bus, 15  Dec.  561;  3  N.  P.  (N.  S.)    1. 

Effect  of  act  of  reviewing 
board. — Where  the  reviewing  board 
disapproves  the  suspension  the  va- 
cancy created  by  the  suspension  is 
thereby  terminated  and  the  person 
appointed  to  fill  the  vacancy,  ceases 
to  be  an  officer.  State  v.  Hein- 
miller,  38  O.  S.  101. 

Effect  on  wages. — A  policeman 
suspended  for  cause  is  not  entitled 
to  wages  during  the  time  of  sus- 
pension, even  though  the  cause  was 
afterwards  declared  insufficient  by 
the   authority   reviewing.     Steuben- 


ville  v.  Culp,  38  O.  S.  18;  State  v. 
Heinmiller,  38  0.  S.   101. 

A  member  of  fire  department 
wrongfully  suspended  may  not  sit 
quietly  by  without  performing  any 
service  or  taking  action  to  have 
himself  reinstated,  and  hold  city 
liable  for  his  compensation.  Os- 
borne v.  Columbus,  i5  Dec.  561 ;  3 
N.  P.   (N.  S.)    1. 

Majority  decision  is  sufficient. 
State  ex  rel.  v.  Barrett,  22  C.  C.  104. 

Board  equally  divided. — Where 
an  officer  is  suspended,  and  his  sus- 
pension reported  to  the  trial  board 
for  approval,  if  the  board  is  equal- 
ly divided  the  officer  is  entitled  to 
resume  work.  Kelley  v.  Cincinnati, 
7  N.  P.  360. 

(3)  Power  of  mayor.— The 
power  of  the  mayor  to  suspend  is 
limited  to  the  statutory  causes  for 
suspension.  He  has  no  implied 
power  to  suspend.  State  ex  rel.  v. 
Bryson,  44  O.  S.  457,  469. 


Sec.  153.  [Classification  of  service  in  police  and  fire  depart- 
ment.] The  directors  of  public  safety  shall  classify  the  serv- 
ice in  the  police  and  fire  departments  in  conformity  with  the 
ordinance  of  council  determining  the  number  of  persons  to 
be  employed  therein,  and  shall  make  all  rules  for  the  regu- 
lation and  discipline  of  such  departments  and  for  the  quali- 
fication and  examination  of  all  appointees  thereunder,  except 
as  otherwise  provided  in  this  act1 

(1)  Rules. — A  rule  of  the  fire  de- 
partment forbidding  an  officer  to 
assign  his  salary  or  to  incur  indebt- 
edness which  he  is  unable  to  pay, 
was  held  not  unreasonable.  State 
v.  Hyman,  22  C.  C.  213;  so  also  a 
rule  requiring  an  officer  not  to  be 
guilty    of    conduct    unbecoming    an 


officer  and  a  gentleman  or  preju- 
dicial to  the  good  order  of  the  de- 
partment,    lb. 

Fines. —  Whether  fines  can  be 
assessed  against  a  policeman  as  a 
means  of  enforcing  discipline,  see 
Kinney  v.  Toledo,  1  N.  P.  374. 


Sec.  154.     [Contracts  relative  to  police  or  fire  department.] 

The  directors  of  public  safety  shall  have  power  to  make  all 
contracts  and  expenditures  of  money  for  acquiring  lands  for 
the  erection  or  repairing  of  station  houses,  and  for  the  erec- 
tion and  building  of  all  station  houses,  police  stations,  fire 
department  buildings,  fire  cisterns,  and  plugs  that  may  be 
required,  and  for  the  purchase  of  engines,  apparatus,  and  all 
other  supplies  necessary  for  the  police  and  fire  departments; 


392  the  ohio  municipal  code.  [Code  §  155 

provided,  that  no  obligation  involving  an  expenditure  of  more 
than  five  hundred  dollars  shall  be  created  except  upon  the  ap- 
proval of  the  city  council  and  by  written  contract  which  shall 
be  awarded  to  the  lowest  and  best  bidder  after  advertising  for 
ten  days  in  a  newspaper  of  general  circulation  in  the  city. 
They  shall  make  no  sale  or  disposition  of  any  property  belong- 
ing to  the  city  without  first  being  authorized  by  resolution  or 
ordinance  of  the  city  council.1     [1904,  April  25,  97  v.  388.] 

(1)   Contracts   and   sales. —  See      municipal  property,  see   §§  24,  25, 
notes  to  §   143  of  the  Code,  p.  371       26  and  27  of  the  Code. 
et    seq.     As    to    sales    or    lease    of 

(2)  Police,  Fire  and  Sanitary  Police  Pension  Funds. 
Sec.  155.  [Relief  of  members  of  police  or  fire  department  disa- 
bled in  the  discharge  of  their  duty.]  Council  may  provide  by 
general  ordinance  for  the  relief  out  of  the  police  or  fire  funds, 
of  members  of  either  department  temporarily  or  permanently 
disabled  in  the  discharge  of  their  duty;  but  nothing  herein 
contained  shall  be  held  to  impair,  restrict  or  repeal  any  por- 
tion of  the  act  passed  April  23,  1902,  entitled,  "  An  act  au- 
thorizing the  levy  of  taxes  in  municipalities  to  provide  for 
firemen's,  police  and  sanitary  police  pension  funds,  and  to 
create  and  perpetuate  boards  of  trustees  for  the  administra- 
tion of  such  funds."  1 

(1)    Power     of     legislature    to  Special*  acts    creating    a    school 

change  pension  laws. —  Under  for-  teachers'    pension    fund    limited    in 

mer  pension  laws  it  was  held  with-  operation     to     certain     school     dis- 

in  the  power   of  the  legislature  to  tricts    were    held    unconstitutional, 

change  or   wholly   abolish   pensions  State  ex  rel.  v.   Hubbard,  22  C.  C. 

to   disabled  firemen..     Price  v.  Far-  252,  aff'd,  65  0.  S.,  574. 
ley,  22  C.  C.  48. 

[An  act  authorizing  the  levy  of  taxes  in  municipalities  to  pro- 
vide for  firemen's,  police  and  sanitary  police  pension  or  relief  funds, 
and  to  create  and  perpetuate  boards  of  trustees  for  the  administra- 
tion of  such  funds.] 

[Sec.  1.]  (a)  [Trustees  of  the  firemen's  pension  fund.]  In  any 
municipal  corporation  in  this  state  having,  or  which  may  here- 


Code  §  155]    cities,   department  of  public  safety.        393 

after  have,  a  fire  department  supported  in  whole  or  in  part  at 
the  public  expense,  the  council,  board  of  legislation  or  other 
legislative  body  may,  by  ordinance,  declare  the  necessity  for 
the  establishment  and  maintenance  of  a  firemen's  pension  fund 
for  the  purpose  hereinafter  enumerated;  and  thereupon  there 
shall  be  created  a  board  of  trustees  in  the  manner  herein  pro- 
vided, who  shall  be  known  as  the  "  trustees  of  the  firemen's 
pension  fund,"  and  who  shall  administer  and  distribute  the 
fund  authorized  to  be  raised  by  this  section. 

(b)  [How  board  chosen;  tie  vote.]  The  board  of  trustees 
of  the  firemen's  pension  fund  shall  consist  of  the  members  of 
the  board  of  public  safety  or  other  officer  having  charge  or 
control  of  the  fire  department  in  any  municipal  corporation 
availing  itself  of  the  provisions  of  this  section,  and  five  other 
persons,  members  of  the  department  of  such  municipal  corpora- 
tion, to  be  chosen  as  follows:  The  board  of  public  safety  or 
other  board  or  officer  having  charge  or  control  of  the  fire  de- 
partment shall  give  notice  of  an  election  to  be  held  on  the 
second  Monday  of  the  month  following  the  determination  of 
said  board  or  officer  to  create  a  firemen's  pension  fund  under 
the  authority  of  this  section ;  said  notice  shall  be  by  posting  the 
same  in  a  conspicuous  place  at  the  headquarters  of  said  de- 
partment, and  at  the  houses  of  the  several  companies  com- 
posing the  same;  each  person  in  the  fire  department,  who,  by 
its  rules,  is  designated  as  a  member  thereof,  shall,  between 
the  hours  of  nine  o'clock  in  the  forenoon  and  six  o'clock  in 
the  afternoon  on  the  day  designated,  send  or  cause  to  be  sent, 
by  mail  or  otherwise,  in  writing,  the  name  of  five  persons, 
members  of  such  department,  who  shall  be  the  choice  of  the 
member  so  voting;  and  all  votes  so  cast  shall  be  counted  and 
canvassed  by  the  board  or  officer  having  charge  or  control  of 
the  said  fire  department,  who  shall  announce  the  result,  and 
the  five  members  of  the  fire  department  receiving  the  highest 
number  of  votes  shall  become  members  of  the  board  of  trus- 
tees of  the  firemen's  pension  fund  for  the  ensuing  year.  In 
case  of  a  tie  vote  being  received  by  any  two  members  persons 
for  the  office  of  trustee,  such  tie  vote  shall  be  decided  by  cast- 
ing lots,  or  in  any  other  way  which  may  be  agreed  upon  by  the 
persons  for  whom  such  tie  vote  was  cast. 

[Term  of  members;  vacancy.]  The  members  so  elected  shall 
serve  for-  one  year  or  until  their  successors  are  elected,  and 
the  election  for  such  members  of  the  board  of  trustees  shall  be 
held  annually  upon  the  second  Monday  of  the  same  month 
upon  which  the  first  election  occurs.     In  case  of  a  vacancy  by 


THE    OHIO    MUNICIPAL    CODE.  [Code    §     155 

death,  resignation  or  otherwise  among  the  five  members  so 
elected  the  remaining  member  or  members  so  elected  shall 
choose  the  successor  or  successors  until  the  next  annual  elec- 
tion; provided,  that  upon  the  petition  of  a  majority  of  the 
members  of  the  fire  department  in  any  such  municipality,  the 
board  or  officer  having  charge  or  control  of  said  department 
may  designate  a  less  number  than  live  members  of  said  de- 
partment to  be  elected  trustees  of  said  firemen's  pension  fund. 

[Officers  of  board.]  The  presiding  officer  of  the  board- of  pub- 
lic safety  or  other  board  having  charge  or  control  of  the  fire 
department,  or  the  officer  in  charge  or  control  of  said  depart- 
ment, shall  be  president  of  the  board  of  trustees  of  the  fire- 
men's pension  fund  created  under  this  section,  and  the  secre- 
tary, clerk  or  corresponding  officer  of  the  fire  department  shall 
be  secretary  of  such  board  of  trustees  of  the  firemen's  pension 
fund,  and  in  case  there  be  no  secretary,  clerk  or  corresponding 
officer  of  said  fire  department,  the  board  of  trustees  of  the  fire- 
men's pension  fund  shall  appoint  the  secretary  of  their  board. 
It  shall  be  the  duty  of  such  secretary  to  keep  a  full  record  of 
all  the  proceedings  of  the  board  of  trustees  of  the  firemen's 
pension  fund,  and  said  trustees  may  Sjl  his  compensation  for 
this  work,  which  shall  be  paid  out  of  said  pension  fund. 

(c)  [Firemen's  pension  fund;  how  created.]  In  every  muni- 
cipality availing  itself  of  the  provisions  of  this  section,  there 
shall  be  a  firemen's  pension  fund,  which  shall  be  maintained  as 
follows:  The  council,  board  of  legislation,  or  other  legislative 
body  of  such  municipality,  are  hereby  authorized  to  levy  an- 
nually at  the  time  and  in  the  manner  provided  by  law  for  other 
municipal  levies,  and  in  addition  to  all  the  other  levies  author- 
ized by  law,  a  tax  of  not  more  thar  Jiree-tenths  of  a  mill  on 
each  dollar  upon  all  the  real  and  personal  property  as  listed 
for  taxation  in  such  municipality,  and  in  the  manner  of  such 
levy  the  board  of  trustees  of  the  firemen's  pension  fund  shall 
be  subject  to  all  the  provisions  of  law  controlling  the  heads 
of  departments  in  any  such  municipality,  and  shall  fulfill  all 
the  duties  required  of  such  heads  of  departments;  provided, 
that  a  failure  of  such  board  of  trustees  to  act  in  the  manner 
required  by  law  of  the  heads  of  departments  in  any  such  mu- 
nicipalities in  the  making  of  such  levy,  shall  not  limit  the 
power  of  the  council,  board  of  legislation  or  legislative  body 
to  make  said  levy;  and  provided  further  that  in-  case  the 
council,  board  of  legislation  or  other  legislative  body,  shall  fail 
in  any  year  to  make  the  maximum  levy  herein  authorized, 
then  and  in  that  event,  there  shall,  in  addition  to  the  amount 


Code  §  155]    cities,   department  of  public  safety.        395 

realized  therefrom,  be  passed  to  the  credit  of  the  firemen's 
pension  fund  such  portion  of  the  tax  raised  under  an  act  of 
the  general  assembly,  passed  May  14,  1886,  and  as  amended, 
March  26,  1888,  April  28,  1890,  and  February  20,  1896,  and 
entitled  "  An  act  providing  against  the  evils  resulting  from 
the  traffic  in  intoxicating  liquors/'  required  in  said  act  to  be 
passed  to  the  credit  of  the  general  fund  in  any  such  muni- 
cipality, as  will  equal,  when  added  to  the  amount  realized  from 
said  levy,  the  amount  that  would  be  realized  from  a  three- 
tenths  of  a  mill  levy  on  each  dollar  upon  all  the  real  and  per- 
sonal property  as  listed  for  taxation  in  such  municipality,  or 
such  part  thereof  as  shall  be  necessary  to  meet  the  pension  pay- 
roll; provided  that  such  portion  so  used  of  the  tax  raised 
under  said  act  of  the  general  assembly  aforesaid  shall  not 
exceed  sixteen-thirtieths  of  the  amount  of  said  tax  required  in 
such  sections  to  be  passed  to  the  credit  of  the  general  fund  in 
any  such  municipality.  All  fines  imposed  upon  any  member 
of  the  fire  department  in  any  such  municipality  by  way  of 
discipline  or  punishment  by  the  board  or  officer  having  charge 
or  control  of  said  department,  and  all  proceeds  of  suits  for 
penalties  for  the  violation  of  any  statute  of  this  state,  or  ordi- 
nance of  such  municipality,  with  the  execution  of  which  the 
fire  department  is  charged,  and  license  or  other  fees  payable 
under  the  same,  shall  be  credited  to  said  pension  fund ;  and  the 
board  of  trustees  of  said  fund  are  authorized  to  take  by  gift, 
grant,  devise  or  bequest,  any  moneys  or  real  or  personal  prop- 
erty, upon  such  terms  as  to  the  investment  or  expenditure 
thereof  as  may  be  fixed  by  the  grantor  or  determined  by  said 
trustees.  The  trustees  of  the  firemen's  pension  fund  may  also 
receive  such  uniform  amounts  from  each  person  designated  by 
the  rules  of  the  fire  department  a  member  thereof  as  he  may 
voluntarily  agree  to,  to  be  deducted  from  the  monthly  pay  of 
said  person,  and  the  monthly  amounts  so  received  shall  be  used 
as  a  fund  to  increase  the  pension  which  may  be  granted  to  such 
persons  or  their  beneficiaries.1 

( 1 )  Enforced  contributions  in-  of  rights  of  the  Const,  of  Ohio.  State 
valid. —  Under  a  special  school  ex  rel.  v.  Hubbard,  22  C.  C.  252, 
teachers'  pension  act,  it  was  held  (aff'd,  65  O.  S.,  574)  and  teach- 
that  deductions  from  salaries  to  ers  accepting  positions  after  notice 
support  the  fund,  made  without  of  such  deductions,  are  not  estopped 
consent  of  the  teachers,  is  forbid-  to  attack  validity  of  law.  lb. 
den  by   §   2,  Art.   12,  and  the  bill 


396  the  ohio  municipal  code.  [Code  §  155 

(d)  [Who  custodian  of  fund;  bond.]  The  treasurer  of  every 
municipality  having  a  firemen's  pension  fund  shall  be  the  cus- 
todian of  said  fund  and  shall  pay  out  the  same  upon  the  proper 
order  of  the  board  of  trustees.  Said  treasurer  shall  execute  a 
bond  for  the  faithful  performance  of  his  duties  with  respect  to 
this  fund,  and  in  such  sum  and  form  as  shall  be  satisfactory 
to  said  board  of  trustees. 

(e)  [How  fund  invested.]  The  board  of  trustees  of  said  pen- 
sion fund  may  invest  any  moneys  received  by  them  other  than 
those  raised  by  taxation  under  this  section,  in  interest  bearing 
bonds  of  the  United  States,  of  the  state  of  Ohio,  or  of  any 
county,  township,  school  district  or  municipal  corporation  in 
this  state.  Said  board  of  trustees  shall  make  a  report  to  the 
council,  board  of  legislation  or  other  legislative  body  of  the 
municipality  of  the  condition  of  said  fund  on  the  first  day  of 
January  of  each  year. 

(/)  [Rules  and  regulations.]  The  board  of  trustees  of  the 
firemen's  pension  fund  shall  make  all  rules  and  regulations  for 
the  distribution  of  said  fund,  including  the  qualifications  of 
those  to  whom  any  portion  of  said  fund  shall  be  paid,  and  the 
amount  thereof;  provided,  that  no  such  rules  and  regulations 
shall  be  in  force  until  the  same  have  been  approved  by  the 
board  of  public  safety,  or  other  board  or  officer  having  charge 
or  control  of  the  fire  department  in  any  such  municipality. 

(g)  [Who  beneficiaries  of  fund.]  All  persons  drawing  pen- 
sions or  entitled  to  the  same  from  existing  firemen's  pension 
funds,  are  hereby  made  beneficiaries  in  any  pension  funds  cre- 
ated under  this  section  in  the  same  municipality  where  said 
persons  are  beneficiaries  in  said  existing  pension  funds,  and 
shall  remain  such,  receiving  such  amounts  and  subject  to  the 
rules  and  regulations  adopted  by  the  board  of  trustees  of  said 
firemen's  pension  fund  as  aforesaid. 

[Upon  organization  board  shall  become  successor  of  similar  board 
now  existing  in  any  municipality.]  Upon  the  organization  of 
any  board  of  trustees  of  a  firemen's  pension  fund  created  under 
this  section,  all  moneys,  credits,  investments  and  property  of 
every  kind  and  description  held  by  existing  firemen's  pension 
boards  in  any  municipality  where  new  board  are  organized 
under  this  section,  shall  by  said  existing  boards  be  delivered, 
transferred  and  conveyed  to  said  new  boards,  and  the  said  new 
boards  created  under  this  section  are  hereby  made  the  suc- 
cessors of  the  existing  boards  as  to  the  ownership  of  all  such 
property.      [95  v.  223;  1904,  April  23,  97  v.  242.] 


Code  §  155]   cities,     department  of  public  safety.         397 

[Sec.  2.]  (a)  [Trustees  of  the  police  relief  fund.]  In  any  mu- 
nicipal corporation  in  this  state  having,  or  which  may  here- 
after have,  a  police  department  supported  in  whole  or  in  part 
at  the  public  expense,  the  council,  board  of  legislation  or  other 
legislative  body  may,  by  ordinance,  declare  the  necessity  for 
the  establishment  and  maintenance  of  a  police  relief  fund  for 
the  purposes  hereinafter  enumerated;  and  thereupon  there 
shall  be  created  a  board  of  trustees  in  the  manner  herein  pro- 
vided, who  shall  be  known  as  the  "  trustees  of  the  police  re- 
lief fund,"  and  who  shall  administer  and  distribute  the  fund 
authorized  to  be  raised  by  this  section. 

(b)  [How  board  made  up;  tie  vote.]  The  board  of  trustees  of 
the  police  relief  department  shall  consist  of  the  members  of 
the  board  of  public  safety,  police  commissioners  or  other  board 
or  officer  having  charge  or  control  of  the  police  department  in 
any  municipal  corporation  avail  itself  of  the  provisions  of 
this  section,  and  five  other  persons,  members  of  the  police 
department  of  such  municipal  corporation,  to  be  chosen  as 
follows:  The  board  of  public  safety,  police  commissioners  or 
other  board  or  officers  having  charge  or  control  of  the  police 
department,  shall  give  notice  of  an  election  to  be  held  on  the 
second  Monday  of  the  month  following  the  determination  of 
said  police  commissioners  or  other  board  or  officer  to  create  a 
police  relief  fund  under  the  authority  of  this  section;  said 
notice  shall  be  posted  by  the  same  in  a  conspicuous  place  at 
the  headquarters  of  said  department  and  at  various  station 
houses  within  the  municipality;  each  person  in  the  police  de- 
partment, who,  by  its  rules,  is  designated  a  member  thereof, 
shall,  between  the  hours  of  nine  o'clock  in  the  forenoon  and 
six  o'clock  in  the  afternoon,  on  the  day  designated,  send  or 
cause  to  be  sent  by  mail  or  otherwise,  in  writing,  the  names  of 
five  persons,  members  of  such  department,  who  shall  be  the 
choice  of  the  members  so  voting;  and  all  votes  so  cast  shall  be 
counted  and  canvassed  by  the  board  of  public  safety,  police 
commissioners  or  other  board  or  officer  having  charge  or  con- 
trol of  the  said  police  department  who  shall  announce  the  result, 
and  the  five  members  of  the  police  department  receiving  the 
highest  number  of  votes  shall  become  members  of  the  board  of 
trustees  of  the  police  relief  fund  for  the  ensuing  year.  In  case 
of  a  tie  vote  being  received  by  any  two  persons  for  the  office 
of  trustee,  such  tie  vote  shall  be  decided  by  casting  lots,  or  in 
any  other  way  which  may  be  agreed  upon  by  the  persons  for 
whom  such  tie  vote  was  cast. 


398  the  ohio  municipal  code.  [Code  '§  155 

[Term  of  members;  vacancies.]  The  members  so  elected  shall 
serve  for  one  year  and  until  their  successors  are  elected,  and 
the  election  for  such  members  of  the  board  of  trustees  shall  be 
held  annually  upon  the  second  Monday  of  the  same  month  upon 
which  the  first  election  occurs.  In  case  of  a  vacancy  by  death, 
resignation  or  otherwise  among  the  five  members  so  elected, 
the  remaining  member  or  members  so  elected  shall  choose  the 
successor  or  successors  until  the  next  annual  election;  pro- 
vided, that  upon  the  petition  of  a  majority  of  the  members  of 
the  police  department  in  any  such  municipality,  the  board  of 
public  safety,  police  commissioners  or  other  board  or  officer 
having  charge  or  control  of  said  department  to  be  elected 
trustees  of  said  police  relief  fund. 

[Officers  of  board.].  The  presiding  officer  of  the  board  of  pub- 
lic safety,  police  commissioners  or  other  board  having  charge 
or  control  of  the  police  department,  or  the  officer  in  charge  or 
control  of  said  department,  shall  be  the  president  of  the  board 
of  trustees  of  the  police  relief  fund  created  under  this  section, 
and  the  secretary,  clerk  or  corresponding  officer  of  the  police 
department  shall  be  secretary  of  said  board  of  trustees  of  the 
police  relief  fund,  and  in  case  there  be  no  secretary,  clerk  or 
corresponding  officer  of  said  police  department,  the  board  of 
trustees  of  the  police  relief  fund  shall  appoint  the  secretary  of 
their  board.  It  shall  be  the  duty  of  such  secretary  to  keep 
a  full  record  of  all  the  proceedings  of  the  board  of  trustees  of 
the  police  relief  fund,  and  said  trustees  may  fix  his  compen- 
sation for  this  work,  which  shall  be  paid  out  of  said  relief  fund. 

(c)  [Police  relief  fund;  how  created.]  In  every  municipal- 
ity availing  itself  of  the  provisions  of  this  section  there  shall 
be  a  police  relief  fund,  which  shall  be  maintained  as  follows: 
The  council,  board  of  legislation  or  other  legislative  body  of 
such  municipality  are  hereby  authorized  to  levy  annually  at 
the  time  and  in  the  manner  provided  by  law  for  other  muni- 
cipal levies,  and  in  addition  to  all  other  levies  authorized  by 
law,  a  tax  of  not  more  than  three-tenths  of  a  mill  on  each  dol- 
lar upon  all  the  real  and  personal  property  as  listed  for  taxa- 
tion in  such  municipality,  and  in  the  matter  of  such  levy  the 
board  of  trustees  of  the  police  relief  fund  shall  be  subject  to 
all  the  provisions  of  law  controlling  the  heads  of  departments 
in  any  such  municipality,  and  shall  fulfill  all  the  duties  re- 
quired of  such  heads  of  departments ;  provided  that  the  failure 
of  such  board  of  trustees  to  act  in  the  manner  required  by  law 
of  the  heads  of  departments  in  any  such  municipality  in  the 
making  of  such  levy,  shall  not  limit  the  power  of  the  council, 


Code  §  155]     cities,   department  of  public  safety.       399 

board  of  legislation,  or  other  legislative  bodies,  to  make  said 
levy;  and  provided,  further,  that  in  case  the  council,  board  of 
legislation  or  other  legislative  body,  shall  fail  in  any  year  to 
make  the  maximum  levy  herein  authorized,  then  and  in  that 
event,  there  shall,  in  addition  to  the  amount  realized  therefrom, 
be  passed  to  the  credit  of  the  police  relief  fund  such  portion 
of  the  tax  raised  under  an  act,  entitled  "  An  act  providing 
against  the  evils  resulting  from  the  traffic  in  intoxicating 
liquors "  passed  May  14,  1886,  and  as  amended  March  26, 
1888,  and  April  28,  1890,  and  February  20,  1896  and  re- 
quired by  said  act  to  be  passed  to  the  credit  of  the  general 
fund  in  any  municipality,  as  will  equal,  when  added  to  the 
amount  realized  from  said  levy,  the  amount  that  would  be 
realized  from  a  three-tenths  of  a  mill  levy  on  each  dollar  upon 
all  the  real  and  personal  property  as  listed  for  taxation  in  such 
municipality,  or  such  part  thereof  as  shall  be  necessary  to  meet 
the  pension  pay-roll ;  provided,  that  such  portion  so  used  of  the 
tax  raised  by  said  act,  shall  not  exceed  thirteen-thirtieths  of 
the  amount  of  said  tax  required  in  said  sections  to  be  passed 
to  the  credit  of  the  general  fund  in  any  such  municipality. 

All  fines  imposed  upon  any  member  of  the  police  department 
in  any  such  municipality  by  way  of  discipline  or  punishment, 
by  the  police  commissioners  or  other  board  or  officers  having 
charge  or  control  of  said  department,  all  rewards,  fees  or  pro- 
ceeds of  gifts  and  emoluments  that  may  be  allowed  by  the  police 
commissioners  or  other  board  or  officer  having  charge  or  control 
of  said  police  department,  to  be  paid  and  given  for  or  on  account 
of  any  extraordinary  service  of  any  member  of  the  force,  and 
all  moneys  arising  from  the  sale  of  unclaimed  property  or 
money,  after  deducting  all  expenses  incident  thereto,  shall  be 
credited  to  said  police  relief  fund ;  and  the  board  of  trustees  are 
authorized  to  take  by  gift,  grant,  devise  or  bequest,  any  moneys 
or  real  or  personal  property,  upon  such  terms  as  to  the  invest- 
ment or  expenditure  thereof  as  may  be  fixed  by  the  grantor  or 
determined  by  said  trustees.  The  trustees  of  the  police  relief 
fund  may  also  receive  such  uniform  amounts  from  each  person 
designated  by  the  rules  of  the  police  department  a  member 
thereof,  as  he  may  voluntarily  agree  to,  to  be  deducted  from 
the  monthly  pay  of  said  person,  and  the  monthly  amounts  so 
received  shall  be  used  as  a  fund  to  increase  the  pensions  which 
may  be  granted  to  such  persons  or  their  beneficiaries,  or  in  the 
discretion  of  the  board  of  trustees  of  the  police. relief  fund,  the 
money  derived  from  such  monthly  deductions  may  be  used  to 
relieve  members  of  the  force  who  contribute  thereto,  when  sick 


400  the  ohio  municipal  code.  [Code  §  155 

or  disabled  from  the  performance  of  duty,  for  funeral  expenses, 
relief  of  their  families  in  case  of  death  or  for  pensions  when 
honorably  retired  from  the  force.1 

(d)  [Who  custodian  of  fund;  bond.]  The  treasurer  of  every 
municipality  having  a  police  relief  fund  shall  be  the  custodian 
of  said  fund,  and  shall  pay  the  same  upon  the  proper  order 
of  the  board  of  trustees.  Said  treasurer  shall  execute  a  bond 
for  the  faithful  performance  of  his  duties  with  respect  to  this 
fund,  and  in  such  sum  and  form  as  will  be  satisfactory  to  said 
board  of  trustees. 

(e)  [Investment  of  fund.]  The  board  of  trustees  of  said  po- 
lice relief  fund  may  invest  any  moneys  received  by  them  other 
than  those  raised  by  taxation  under  this  section  in  interest 
bearing  bonds  of  the  United  States,  of  the  state  of  Ohio,  or  of 
any  county,  township,  school  district  or  municipal  corporation 
in  this  state.  Said  board  of  trustees  shall  make  a  report  to 
the  council,  board  of  legislation  or  other  legislative  body  of 
the  municipality  of  the  condition  of  said  fund  on  the  first  day 
of  January  of  each  year. 

(/)  [Rules  and  regulations.]  The  board  of  trustees  of  the 
police  relief  fund  shall  make  all  rules  and  regulations  for  the 
distribution  of  said  fund,  including  the  qualifications  of  those 
to  whom  any  portion  of  said  fund  shall  be  paid,  and  the  amount 
thereof;  provided,  that  no  such  rules  and  regulations  shall  be 
in  force  until  the  same  have  been  approved  by  the  board  of 
public  safety  police  commissioners  or  other  board  or  officer 
having  charge  or  control  of  the  police  department  in  any  such 
municipality. 

(g)  [Who  beneficiaries  of  fund.]  All  persons  drawing  pen- 
sions or  enjoying  or  entitled  to  the  same  or  other  relief  from 
eixisting  police  [relief]  or  pension  funds  are  hereby  made  bene- 
ficiaries in  any  police  relief  funds  created  under  this  section 
in  the  same  municipality  where  the  same  persons  are  bene- 
ficiaries in  said  existing  police  pension  or  relief  funds,  and  shall 
remain  such,  receiving  such  amounts  and  subject  to  the  rules 
and  regulations  adopted  by  the  board  of  trustees  of  said  police 
relief  fund  as  aforesaid. 

[Upon  organization  board  shall  become  successor  of  similar 
board  now  existing  in  any  municipality.]  Upon  the  organiza- 
tion of  any  board  of  trustees  of  a  police  relief  fund  created 
under  this  section,  all  moneys,  credits,  investments  and  property 
of  every  kind  and  description  held  by  existing  police  pension 
or  relief  boards  in  any  municipality  where  new  boards  are 
organized  under  this  section,  shall  by  said  existing  boards  be  de- 


Code  §  155]    cities,   department  of  public  safety.        401 

livered,  transferred  and  conveyed  to  said  new  boards,  and  the 
said  new  boards  created  under  this  section  are  hereby  made  the 
successors  of  the  existing  boards  as  to  the  ownership  of  all  such 
property.      [95  v.  223;  1904,  April  23,  97  v.  245.] 

[Sec.  3.]  (a)  [Trustees  of  the  sanitary  police  pension  fund.] 
In  any  municipal  corporation  in  this .  state,  having  or  which 
may  hereafter  have,  a  sanitary  police  force,  supported  in  whole 
or  in  part  at  the  public  expense,  the  council,  board  of  legisla- 
tion or  other  legislative  body  may,  by  ordinance,  declare  the 
necessity  for  the  establishment  and  maintenance  of  a  sanitary 
police  pension  fund  for  the  purposes  hereinafter  enumerated ; 
and  thereupon  there  shall  be  created  a  board  of  trustees,  in 
the  manner  herein  provided,  who  shall  be  known  as  the  "  trus- 
tees of  the  sanitary  police  pension  fund,"  and  who  shall  ad- 
minister and  distribute  the  fund  authorized  to  be  raised  by  this 
section. 

(b)  [How  board  chosen;  tie  vote.]  The  board  of  trustees  of 
the  sanitary  police  pension  fund  shall  consist  of  the  board  or 
officer  having  charge  or  control  of  the  health  department  in 
any  municipal  corporation  availing  itself  of  the  provisions  of 
this  section,  and  five  other  persons,  members  of  the  sanitary 
police  force  of  such  corporation,  to.be  chosen  as  follows:  The 
board  or  officer  having  charge  or  control  of  the  health  depart- 
ment shall  give  notice  of  an  election  to  be  held  on  the  second 
Monday  of  the  month  following  the  determination  of  said 
board  or  officer  to  create  a  sanitary  police  pension  fund  under 
the  authority  of  this  section;  said  ._otice  shall  be  by  posting 
the  same  in  a  conspicuous  place  at  the  headquarters  of  said 
force;  each  person  in  the  sanitary  police  force,  who,  by  its 
rules,  is  designated  a  member  thereof  shall,  between  the  hours 
of  nine  o'clock  in  the  forenoon  and  six  o'clock  in  the  afternoon 
on  the  day  designated,  send  or  cause  to  be  sent,  by  mail  or 
otherwise,  in  writing,  the  names  of  five  persons,  members  of 
such  sanitary  police  force,  who  shall  be  the  choice  of  the  mem- 
ber so  voting;  and  all  votes  so  cast  shall  be  counted  and  can- 
vassed by  the  board  or  officer  having  charge  or  control  of  the 
said  health  department,  who  shall  announce  the  result,  and  the 
five  members  of  the  sanitary  police  force  receiving  the  highest 
number  of  votes  shall  become  members  of  the  board  of  trustees 
of  the  sanitary  police  pension  fund  for  the  ensuing  year.  In 
case  of  a  tie  vote  being  received  by  any  two  persons  for  the 
office  oi  trustee,  such  tie  vote  shall  be  decided  by  casting  lots, 
or  in  any  other  way  which  may  be  agreed  upon  by  the  persons 
for  whom  such  tie  vote  was  cast. 


402  THE    OHIO    MUNICIPAL    CODE.  [Cod©  §155 

[Term  of  members;  vacancies.]  The  members  so  elected  shall 
serve  for  one  year  and  until  their  successors  are  elected,  and 
the  election  for  such  members  of  the  board  of  trustees  shall 
be  held  annually  upon  the  second  Monday  of  the  same  month 
upon  which  the  first  election  occurs.  In  case  of  a  vacancy  by 
death,  resignation  or  otherwise  among  the  five  members  so 
elected,  the  remaining  member  or  members  so  elected  shall 
choose  the  successors  until  the  next  annual  election;  provided, 
that  upon  the  petition  of  a  majority  of  the  members  of  the 
sanitary  police  force  in  any  such  municipality,  the  board  or 
officer  having  charge  or  control  of  the  health  department  may 
designate  a  less  number  than  five  members  of  said  sanitary 
police  force  to  be  elected  trustees  of  said  sanitary  police  pen- 
sion fund. 

[Officers  of  board.]  The  presiding  officer  of  the  board  having 
charge  or  control  of  the  health  department,  or  the  officer  in 
charge  or  control  of  said  health  department,  shall  be  president 
of  the  board  of  trustees  of  the  sanitary  police  pension  fund 
created  under  this  section,  and  the  secretary,  clerk,  or  corre- 
sponding officer  of  the  health  department  shall  be  secretary  of 
the  board  of  trustees  of  the  sanitary  police  pension  fund,  and 
in  case  there  be  no  secretary,  clerk,  or  corresponding  officer  of 
said  health  department,  the  board  of  trustees  of  the  sanitary  po- 
lice pension  fund  shall  appoint  the  secretary  of  their  board. 
It  shall  be  the  duty  of  such  secretary  to  keep  a  full  record  of 
all  the  proceedings  of  the  board  of  trustees  of  the  sanitary 
police  pension  fund,  and  said  trustees  may  fix  his  compensa- 
tion for  this  work,  which  shall  be  paid  out  of  said  pension  fund. 

(c)  [Sanitary  police  pension  fund;  how  created.]  In  every  mu- 
nicipality availing  itself  of  the  provisions  of  this  section  there 
shall  be  a  sanitary  police  pension  fund,  which  shall  be  main- 
tained as  follows:  The  council,  board  of  legislation,  or  other 
legislative  body  of  such  municipality,  are  hereby  authorized 
to  levy  annually,  at  the  time  and  in  the  manner  provided  by 
law  for  other  municipal  levies,  and  in  addition  to  all  other 
levies  authorized  by  law,  a  tax  not  exceeding  one-thirtieth  of 
a  mill  on  each  dollar  upon  all  the  real  and  personal  property 
as  listed  for  taxation  in  such  municipality,  and  in  the  mat- 
ter of  such  levy  the  board  of  trustees  of  the  sanitary  police 
pension  fund  shall  be  subject  to  all  the  provisions  of  law  con- 
trolling the  heads  of  departments  in  any  such  municipality, 
and  shall  fulfill  all  the  duties  required  of  such  heads  of  de- 
partments; provided,  that  a  failure  of  such  board  of  trustees 
to  act  in  the  manner  required  by  law  of  the  heads  of  depart- 


Code  §  155]    cities,    department  of  public  safety.       403 

ments  in  any  such  municipality  in  the  making  of  such  levy, 
shall  not  limit  the  power  of  the  council,  board  of  legislation  or 
other  legislative  body  to  make  said  levy;  and  provided  fur- 
ther, that  in  case  the  council,  board  of  legislation  or  other  legis- 
lative body,  shall  fail  in  any  year  to  make  the  maximum  levy 
herein  authorized,  then  and  in  that  event  there  shall,  in  addi- 
tion to  the  amount  realized  therefrom,  be  passed  to  the  credit 
of  the  sanitary  police  pension  fund  such  portion  of  the  tax 
raised  under  an  act  passed  and  amended  as  aforesaid,  required 
in  said  act  to  be  passed  to  the  credit  of  the  general  fund  in 
any  such  municipality,  as  will  equal,  when  added  to  the  amount 
realized  from  said  levy,  the  amount  that  would  be  realized 
from  a  one-sixtieth  of  a  mill  levy  on  each  dollar  upon  all  the 
real  and  personal  property  as  listed  for  taxation  in  such  mu- 
nicipality, or  such  part  thereof  as  shall  be  necessary  to  meet 
the  pension  pay-roll;  provided,  that  such  portion  so  used,  of 
the  tax  raised  under  said  sections  4364-9  to  4364—17  inclusive, 
shall  not  exceed  one-thirtieth  of  the  amount  of  said  tax  required 
in  such  sections  to  be  passed  to  the  credit  of  the  general  fund  in 
any  such  municipality.  All  fines  imposed  upon  any  member 
of  the  sanitary  police  force  in  any  such  municipality  by  way  of 
discipline  or  punishment  by  the  board,  or  officer  having  charge 
of  the  health  department,  and  all  proceeds  of  suits  for  penalties 
for  the  violation  of  any  statute  of  this  state,  or  ordinances  of 
such  municipality,  with  the  execution  of  which  the  health  de- 
partment is  charged,  and  license  or  other  fees  payable  under 
the  same,  shall  be  credited  to  said  pension  fund ;  and  the  board 
of  trustees  of  said  fund  are  authorized  to  take  by  gift,  grant, 
devise  or  bequest,  any  moneys  or  personal  property,  upon  such 
terms  as  to  the  investment  or  expenditure  thereof,  as  may  be 
fixed  by  the  grantor  or  determined  by  said  trustees.  The 
trustees  of  the  sanitary  police  pension  fund  may  also  re- 
ceive such  uniform  amounts  from  each  person  designated  by  the 
rules  of  the  sanitary  police  force  a  member  thereof,  as  he  may 
voluntarily  agree  to,  to  be  deducted  from  the  monthly  pay  of 
said  person,  and  the  monthly  amounts  so  received  shall  be 
used  as  a  fund  to  increase  the  pension  which  may  be  granted 
to  such  persons  or  their  beneficiaries.1 

(1)   See  note  under  §  1   (c)  of  this  act,  page  395. 

(d)  [Who  custodian  of  fund;  bond.]  The  treasurer  of  every 
municipality  having  a  sanitary  police  pension  fund  shall  be  the 
custodian  of  said  fund  and  shall  pay  out  the  same  upon  the 
proper  order  of  the  board  of  trustees.  Said  treasurer  shall 
execute  a  bond  for  the  faithful  performance  of  his  duties  with 


404  the  ohio  municipal  code.  [Code  §   156 

respect  to  this  fund,  and  in  such  sum  and  form  as  shall  be 
satisfactory  to  said  board  of  trustees. 

(e)<  [Investment  of  funds.]  The  board  of  trustees  of  said 
sanitary  police  pension  fund  may  invest  any  moneys  received 
by  them  other  than  those  received  by  taxation  under  this  sec- 
tion, in  interest  bearing  bonds  of  the  United  States,  or  of  the 
state  of  Ohio,  or  of  any  county,  township,  school  district  or 
municipal  corporation  in  this  state.  Said  board  of  trustees 
shall  make  a  report  to  the  council,  board  of  legislation  or  other 
legislative  body  of  the  municipality  of  the  condition  of  said 
fund  on  the  first  day  of  January  of  each  year. 

(/)  [Rules  and  regulations.]  The  board  of  trustees  of  the 
sanitary  police  pension  fund  shall  make  all  rules  and  regula- 
tions for  the  distribution  of  said  fund,  including  the  quali- 
fications of  those  to  whom  any  portion  of  said  fund  shall  be 
paid  and  the  amount  thereof;  provided,  that  no  such  rules  and 
regulations  shall  be  in  force  until  the  same  have  been  approved 
by  the  board  or  officer  having  charge  or  control  of  the  health 
department  in  any  such  municipality. 

(g)  [Who  beneficiaries  of  fund.]  All  persons  drawing  pen- 
sions or  entitled  to  the  same  from  existing  sanitary  police 
pension  funds,  are  hereby  made  beneficiaries  in  any  pension 
funds  created  under  this  section  in  the  same  municipality 
where  said  persons  are  beneficiaries  in  said  existing  pension 
funds,  and  shall  remain  such,  receiving  such  amounts  and  sub- 
ject to  such  rules  as  govern  the  distribution  of  said  existing 
sanitary  police  pension  funds. 

[Upon  organization  board  shall  become  successor  of  similar 
board  now  existing  in  any  municipality.]  Upon  the  organiza- 
tion of  any  board  of  trustees  of  a  sanitary  police  pension  fund, 
created  under  this  section,  all  moneys,  credits,  investments 
and  property  of  every  kind  and  description  held  by  existing 
sanitary  police  pension  boards  in  any  municipality  where  new 
boards  are  organized  under  this  section,  shall  by  said  existing 
boards  be  delivered,  transferred  and  conveyed  to  said  new 
boards,  and  the  said  new  boards  created  under  this  section 
are  hereby  made  the  successors  of  the  existing  boards  as  to 
the  ownership  of  all  such  property.  [95  v.  223;  1904,  April 
23,  97  y.  248.] 

(8 )     Merit  System  in  Police  and  Fire  Departments. 

Sec.  156.  [In  what  cases  mayor  to  prefer  charges  against  a  di- 
rector of  public  safety;  duty  of  council  thereupon.]  The  board 
of  i  ublic  safety  shall  enforce  and  administer  the  merit  .system 
as  provided  in  this  act.     It  is  hereby  made  the  duty  of  the 


Code  §157]   cities,  department  of  public  safety. 


405 


mayor  to  prefer  charges  with  council  against  any  director  of 
public  safety  for  incompetence,  neglect  of  duty,  malfeasance 
in  office,  habitual  drunkenness  or  gross  immorality ;  *  and  any 
manifest  failure  on  the  part  of  any  director  of  public  safety  to 
enforce  the  provisions  of  this  act  according  to  its  true  intent 
and  purpose  shall  be  deemed  incompetence.  Upon  such  charges 
being  filed  with  the  council  it  shall  be  the  duty  of  council  to 
proceed  to  inquire  into  said  charges  in  the  manner  provided  in 
this  act  for  the  removal  of  other  officers  of  the  municipality.2 


(1)  Statutory  causes  for  re- 
moval exclusive. —  The  causes  for 
removal  provided  by  statute  exclude 
all  other  causes.  Dorgan  v.  Colum- 
bus, 12  Dec.  121;  State  v.  Ganson, 
58  O.   S.  313. 

See,  for  other  causes  of  removal 
of  directors,  §  225  of  the  Code. 

Definitions. —  Misconduct  in  of- 
fice means  as  such  officer  and 
not  otherwise.  Graham  v.  Stein,  18 
C.  C.  770. 

Where  an  officer  commits  an  of- 
fense for  which  he  may  be  indict- 
ed, but  which  does  not  touch  his 
particular  character  as  such  of- 
ficer, he  ought  not  to  be  removed 
until  he  has  been  indicted  and  con- 
victed criminally.  Graham  v.  Stein, 
18  C.  C.  770;  State  v.  Chapman, 
11  O.  430. 

Incompetency  in  a  legal  sense 
means  a  lack  of  fitness  to  discharge 
the  duties  of  the  position,  and  of- 
ficial    delinquency     or     corruption 


would  be  a  disqualification  render- 
ing an  officer  incompetent.  State  v. 
Fire  Commissioners,  26  O.  S.  24. 

Misconduct  implies  wantonness 
and  not  honest  mistakes.  State  ex 
rel.  v.  Roll,  7  W.  L.  J.   121. 

Charges. —  A  charge  setting  out 
facts  showing  that  the  officer 
cursed  the  board  and  refused  to 
come  to  order,  would  amount  to 
a  charge  of  "  misconduct  in  office." 
State  ex  rel.  v.  Sutton,  4  B.  608. 

It  is  not  necessary  that  the 
word  "incompetency "  be  used  in 
the  charge,  when  this  is  the  ground, 
if  acts  evidencing  incompetency,  are 
shown.  State  v.  Fire  Commission- 
ers, 26  O.  S.  24.  As  to  definiteness 
of  charges,  etc.,  see  notes  under  § 
225  of  the  Code. 

(2)  Proceeding.— See  §  225  of 
Code.  And  see  generally  for  mat- 
ters relating  to  nature  of  power  of 
removal,    etc.,    notes    thereunder. 


Sec.  157.  [Members  of  the  board  of  public  safety  not  to  hold 
other  office;  oath.]  No  member  of  said  board  of  public  safety 
shall  hold  any  other  lucrative  office  or  employment  under  the 
United  States,  the  state  of  Ohio,  county,  or  any  municipal 
corporation  or  political  division  thereof,1  and  shall,  before  en- 


406  the  ohio  municipal  code.    [Code  §§158, 159 

tering  upon  the  discharge  of  his  duty,  take  the  oath  prescribed 
by  the  constitution  of  the  state.2 

(1)    Holding  other  office.— Com-  (2)   Oath.— See  §§  1737  and  1740 

pare    §    120    of   the    Code,    and    see      R.    S.,    re-enacted   in    §    224   of   the 
note  (2)  thereunder,  page  176.  Code  and  see  notes  to  these  sections. 

Sec.  158.  [Classification  of  offices,  places  of  appointment  and 
employment.]  The  board  of  public  safety  shall  within  thirty 
days  after  the  organization  of  such  board,  classify  all  offices 
and  places  of  appointment  and  employment  in  each  city  in  the 
department  of  public  safety,  with  reference  to  the  examinations 
hereinafter  provided  for.  The  offices,  employment  and  places 
so  classified  by  the  said  board  of  public  safety  shall  constitute 
the  classified  service  of  the  department  of  said  city  and  no 
appointments  to  such  places  shall  be  made  except  under  and 
according  to  the  rules  hereinafter  mentioned. 

[Information  to  be  furnished  to  mayor.]  Immediately  upon 
the  classification  of  such  department,  such  board  shall  furnish 
to  the  mayor  a  list  of  all  offices,  employment  and  places  in  any 
way  connected  with  such  department  within  said  classified  ser- 
vice, with  the  names  of  the  incumbents,  their  compensation  and 
the  nature  of  their  duties;  and  said  board  shall  from  time  to 
time  promptly  furnish  to  the  said  mayor  in  writing  at  his 
request  all  other  information  desired  by  him  for  the"  proper 
fulfillment  of  his  duties. 

Sec.  159.  [Application  for  examination.]  Every  application, 
in  order  to  entitle  the  applicant  to  appear  for  examination  or 
to  be  examined,  must  state  in  his  or  her  own  handwriting  the 
facts,  under  oath,  on  the  following  subjects: 

1st.  Full  name,   residence  and  postoffice  address. 

2d.  Nationality. 

3d.  Age. 

4th.  Place  of  birth. 

5th.  Health  and  physical  capacity  for  public  service. 


Code  §§160,  161]   cities,  dep't  of  public  safety.  407 

6th.  Previous  employment  in  public  service. 

7th.  Business  or  employment,  and  residence  for  the  previous 
five  years. 

8th.  Education. 

9th.  Such  other  information  as  may  be  reasonably  required 
by  said  board  touching  the  applicant's  fitness  for  public  service. 

Sec.  160.  [Who  not  to  be  appointed  or  retained  in  office.] 
No  person  habitually  using  intoxicating  beverages  to  excess 
shall  be  appointed  to  or  retained  in  any  office,  appointment  or 
employment,  to  which  the  provisions  of  the  merit  system  as 
provided  in  this  act  are  applicable;  nor  shall  any  vendor  of 
intoxicating  liquors  be  so  appointed  or  retained. 

No  person  shall  be  appointed  to  any  office,  place  or  em- 
ployment to  which  the  provisions  of  the  merit  system  as  con- 
tained in  this  act  are  applicable  within  one  year  after  his 
conviction  of  any  offense  against  the  laws  of  this  state;  and 
if  any  person  holding  such  appointment  shall  be  convicted  of 
the  violation  of  any  such  law  he  shall  be  immediately  dis- 
charged. 

No  person  shall  be  eligible  for  appointment  unless  he  be 
a  citizen  of  the  state  of  Ohio  and  of  the  city  in  which  such 
appointment  is  made,  and  shall  have  been  a  resident  of  such  city 
for  at  least  one  year  prior  to  the  time  of  such  appointment. 

Sec.  161.  [Rules  and  regulations.]  Said  board  of  public 
safety  shall  make  all  proper  and  necessary  rules  to  carry  out 
the  purposes  of  the  merit  system  as  contained  in  this  act, 
and  for  examinations,  appointments,  promotions  and  removals 
in  accordance  with  its  provisions.1 

One  of  the  said  rules  shall  provide  that  any  personal  solici- 
tation to  any  officer  or  member  of  said  board  or  to  the  ap- 
pointing power,  in  favor  of  any  candidate  by  any  person  whom- 
soever, unless  fraudulently  done  in  order  to  injure  him,  shall  be 
taken  to  be,  and  deemed  to  have  been   done  at  the  instance 


408  THE    OHIO    MUNICIPAL    CODE.  [Code  §162 

of  the  candidate  himself  and  shall  disqualify  him  from  com- 
peting at  any  examination  for  appointment  for,  and  during  the 
term  of  one  year  thereafter. 

Said  hoard  may  from  time  to  time  make  changes  in  the 
original  rules,  and  all  examinations  shall  be  under  the  direction 
of  said  board,  and  all  rules  and  all  changes  therein  shall  forth- 
with be  printed  for  distribution  by  said  board,  and  the  board 
shall  give  notice  of  the  time  and  place  where  said  rules  may 
be  obtained  by  publication  in  a  newspaper  in  such  city  or  of 
general  circulation  therein,  and  in  each  of  such  publications 
there  shall  be  specified  the  date,  not  less  than  ten  days  subse- 
quent to  the  date  of  such  publication,  when  said  rules  shall  go 
into  operation. 

(1)    Enforcement     of     rules. —  C.  C.  213;  State  ex  rel.  v.  Barrett, 

Courts    will    not    review    testimony  22  C.  C.  104;   State  ex  rel.  Hussey 

fcaken    in    trial    for    infractions    of  v.  Hyman,  21  C.  C.  187. 
rules.     State  ex  rel.  v.  Hyman,  22 

Sec.  162.  [Examination  of  applicants  for  office  or  places  of  ap- 
pointment.] All  applicants  for  offices  or  places  of  employment 
in  such  classified  service  shall  be  subjected  to  examination, 
which  shall  be  competitive  and  free  to  all  citizens  of  the  United 
States,  with  specified  limitations  as  to  residence,  health,  habits 
and  moral  character  herein  provided ;  provided  that  no  educa- 
tional test  shall  be  made  of  an  applicant  other  than  that  actually 
required  for  the  particular  position  for  which  he  applies. 
Such  examinations  shall  be  practical  in  character  and  relate 
to  those  matters  which  will  fairly  test  the  relative  capacity  of 
the  persons  examined  to  discharge  the  duties  of  the  positions 
to  which  they  seek  to  be  appointed,  and  shall  include  tests  of 
physical  qualifications  and  health  and  where  appropriate,  of 
manual  skill. 

No  question  in  any  examination  shall  relate  to  political 
or  religious  opinions  or  affiliations. 


Code  §§163-1 65  J   cities,  dep't  of  public  safety.  409 

Sec.  163.  [Publication  of  notice  of  examination.]  Notice  of 
the  time  and  place  and  general  scope  of  every  examination  shall 
be  given  by  said  board  by  publication  once  each  week  for  two 
weeks  preceding  such  examination,  in  at  least  two  daily  news- 
papers of  opposite  politics  published  in  such  city  or  of  general 
circulation  therein,  if  such  there  be,  and  such  notice  shall 
be  posted  by  said  board  in  a  conspicuous  place  in  the  office 
of  the  mayor,  the  clerk  of  the  city  council,  and  of  said  board, 
two  weeks  before  such  examination ;  such  further  notice  of  exam- 
inations may  be  given  as  is  by  the  board  prescribed. 

Sec.  164.  [Register  of  names  of  persons  eligible  to  appoint- 
ment.] From  the  results  of  the  examinations  made  by  said 
board,  said  board  shall  prepare  a  register,  for  each  grade  or 
class  of  positions  in  the  classified  service  of  such  city,  of  the 
names  of  the  persons  whose  general  average  standing  upon 
such  examination  for  such  grade  is  not  less  than  the  minimum 
fixed  by  the  rules  of  said  board  and  where  otherwise  eligible; 
and  such  persons  shall  take  rank  upon  the  register  as  candidates, 
in  the  order  of  their  relative  examinations,  as  determined  by 
examination,  without  reference  to  priority  of  the  time  of  ex- 
amination. 

Sec.  165.  [Promotion;  examination  for  promotion.]  The  board 
shall,  by  its  rules,  provide  for  promotions  in  the  classified 
service,  on  the  basis  of  ascertained  merit,  and  seniority  in 
service,  and  on  examination,  and  shall  provide  in  all  cases  where 
it  is  practicable,  that  vacancies  shall  be  filled  by  promotion. 
Examinations  for  promotion  may  be  competitive  or  non-com- 
petitive as  the  board  may  determine,  among  members  of  the 
next  lower  rank,  and  it  shall  be  the  duty  of  the  board  to  submit 
to  the  mayor  the  names  of  not  more  than  three  applicants  having 
the  highest  rating,  for  each  promotion. 

The  method  of  examination  and  the  rules  governing  the 
same,  and  the  method  of  certifying  shall  be  the  same  as  provided 


410  the   ohio  municipal   code.  [Code  §   166. 

for  applicants  for  original  appointment;  or  such  examinations 
may  be  non-competitive  as  provided  by  this  section. 

Sec.  166.  [Method  of  appointment.]  The  mayor  shall  notify 
said  board  of  any  vacancy  which  may  exist  in  the  classified 
department  of  such  city,  and  said  board  shall  certify  to  said 
mayor  the  names  and  addresses  of  the  three  candidates  standing 
highest  upon  the  register,  for  the  class  or  grade  to  which  said 
position  belongs.  The  mayor  shall  notify  said  commission  of 
each  position  to  be  filled,  separately,  and  the  mayor  shall  fill 
such  place  by  appointment  of  one  of  the  persons  certified  to 
him  by  said  board,  which  appointment  shall  be  on  probation 
for  such  length  of  time  as  shall  be  fixed  by  the  rules  of  said 
board ;  such  board  may  strike  off  names  of  candidates  from  the 
register  after  they  have  remained  thereon  for  more  than  two 
years.1 

At  or  before  the  expiration  of  the  period  of  probation,  the 
mayor  of  the  city  in  which  the  candidate  is  employed  or  has 
been  appointed,  may,  by  and  with  the  consent  of  said  board, 
discharge  him  upon  giving  in  writing  to  said  board  his  reason 
therefor.  If  at  the  end  of  such  period  of  probation  such  person 
has  not  been  discharged  his  appointment  shall  be  deemed  com- 
plete. 

[Temporary  appointments.]  To  prevent  the  stoppage  of  public 

business  or  to  meet  extraordinary  exigencies,  as  provided  in  this 

act,  the  mayor  may  make  temporary  appointments. 

(1)   Filling       vacancies.  —  The  departments,   by   special   provisions 

provision    as    to    examination    does  in  the  code  for  those  departments, 

not  apply  to  men  who  were  in  office  lb. 

when    the    code    went    into    effect.  Certifying    names.    —    Wheth- 

State  ex  rel.  v.  Hall,  2  C.  C.  (N.  S.)  er    mandamus    will    lie    to    compel 

237,  25  C    C.  361.     Code  §  213,  re-  board  to   certify   names   fo  mayor, 

lating   to    retention    of    all    officers  quere.     State  ex  rel.  v.  Hall,  2  C. 

until    their    successors    are    chosen  C.   (N.  S.)   237,  25  C.  C.  361. 
is  controlled,  as  to  police  and  fire 


Code  §  167]    cities,     dep't  of  public  safety.  410a 

Sec.  167.  [No  removal  or  discharge  except  for  cause.]  No  offi- 
cer or  employe  in  the  department  of  public  safety  shall  be  re- 
moved or  discharged  except  for  cause ;  and  the  cause  of  removal 
of  any  person  shall  be  forthwith  stated  in  writing  by  the  mayor 
to  the  board,  and  shall  be  filed  by  the  said  board  in  its  office,  and 
shall  be  open  to  public  inspection. 

No  officer,  secretary,  clerk,  sergeant,  patrolman,  fireman  or 
other  employe  serving  in  the  police  or  fire  departments  of  any 
city  of  the  state  at  the  time  this  act  goes  into  effect  shall  be 
removed  or  reduced  in  rank  or  pay  except  in  accordance  with 
the  provisions  of  this  act.1 


(1)  Constitutionality.— The  lat- 
ter part  of  this  section  was  held  not 
in  contravention  of  section  27,  arti- 
cle 22  of  the  Constitution.  State  ex 
rel.  v.  Hall,  2  C.  C.  (N.  S.)  237, 
25  C.  C.  361;  contra,  Bender  v. 
Cushing,  14  Dec.  65. 

Reorganization  under  new 
code. —  The  intention  of  the  legis- 
lature was,  not  that  every  mem- 
ber of  the  police  and  fire  depart- 
ment in  every  municipality  when  the 
code  went  into  effect  should  remain 
in  office  when  the  new  department 
was  established  by  ordinance,  but 
that  when  the  new  department  was 
established  and  the  number  of  places 
provided,  those  places  should  be 
filled  from  among  the  members  of 
the  department.  The  places  under 
the  new  department  might  be  less 
than  under  the  old.  State  ex  rel. 
Hall,  2  C.  C.  (N.  S.)  237,  25 
C.  C.  361,  and  the  new  reorganiza- 
tion must  be  made  to  fit,  so  far  as 
possible,  the  conditions  existing  un- 
der the  old  charter  or  law  under 
which  the  former  departments  were 


organized,  for  the  purpose  of  pre- 
serving the  personnel  of  the  de- 
partments and  the  standing  of  the 
members  composing  them.  State  ex 
rel.  v.  Stroble,  2  C.  C.  (N.  S.) 
293;  25  C.  C.  762.  A  superintend- 
ent of  police,  being  the  chief  of 
police  under  the  former  law,  would 
be  the  one  chosen  chief  of  police 
under  the  new  Code.     lb. 

While  the  legislature  intended 
that  officers  and  employes  already 
in  the  department  at  the  time  of 
reorganization  under  the  new  Code 
should,  so  far  as  possible,  not  be 
disturbed,  yet  it  did  not  intend  that 
a  vacancy  in  any  office  in  the  de- 
partment could  be  filled  only  from 
the  list  of  incumbents  of  offices  and 
employments.  State  ex  rel.  v.  Wy- 
man,  71  0.  S.  1. 

Term  of  appointees. — An  ap- 
pointment made,  the  employment 
"to  cease  at  the  pleasure  of  the 
board,"  held  contrary  to  the  spirit 
and  letter  of  first  clause  of  section 
167.  Bender  v.  Cushing,  14  Dec. 
65. 


411  the  ohio  municipal  c^de.  [Code  §§  168-171 

Sec.  168.  [Mayor  to  give  notice  of  appointment,  resignations, 
vacancies,  etc.]  Immediate  notice  in  writing  shall  be  given  by 
the  mayor  to  said  board,  of  all  permanent  appointments  in 
such  department,  and  of  all  promotions,  resignations  or  vacan- 
cies from  any  cause,  in  such  department,  and  of  the  date  thereof, 
and  a  record  of  the  same  shall  be  kept  by  said  board. 

Sec.  169.  [Investigation  of  enforcement  of  merit  system.] 
The  mayor,  or  any  one  appointed  by  him,  shall  investigate  the 
enforcement  of  the  merit  system,  as  provided  in  this  act,  and 
all  the  rules  prescribed  by  the  board  of  public  safety,  and  the 
conduct  and  action  of  the  appointees  in  such  department,  and 
may  inquire  as  to  the  nature,  tenure  and  compensation  of  all 
offices  or  places  in  the  public  service  thereof.  In  the  course  of 
such  investigation,  the  mayor  or  such  appointee  shall  have 
power  to  administer  oaths  and  said  mayor  or  appointee  shall 
have  power  to  secure  by  supoena  both  the  attendance  and  testi- 
mony of  witnesses  and  the  production  of  books  and  papers 
relevant  to  such  investigation;  such  subpoena  shall  be  served 
by  any  officer  authorized  to  serve  civil  process. 

Sec.  170.  [Report  of  the  board  to  mayor.]  Said  board  of 
public  safety,  shall,  at  the  time  provided  for  the  making  of 
reports  by  municipal  officers  to  the  mayor,  make  and  deliver  to 
the  mayor,  and  to  council,  a  report  showing  the  rules  in  force 
in  such  department,  the  practical' effects  thereof  and  any  sug- 
gestions it  may  approve  for  the  more  effectual  accomplishment 
of  the  purposes  of  said  department.  The  mayor,  or  council 
may  require  a  report  from  said  board  of  public  safety  at  any 
other  time. 

Sec.  171.  [Clerk  of  board;  duties.]  The  clerk  of  the  board 
of  public  safety  shall  keep  the  minutes  of  its  proceedings,  pre- 
serve all  reports  made  to  it  and  made  by  it,  keep  a  record  of  all 


Code  §§  172-174]  cities,    dep't  of  public  safety.  412 

examinations  held  under  its  direction,  and  perform  such  other 
duties  as  the  board  of  public  safety  shall  prescribe. 

Sec.  172.  [Offenses  in  connection  with  merit  system.]  No  per- 
son or  officer  shall  wilfully  or  corruptly,  by  himself  or  in  co- 
operation with  one  or  more  persons,  defeat,  deceive  or  obstruct 
any  person,  with  respect  to  his  right  to  examination,  or  falsely 
or  corruptly  mark,  grade  or  estimate  or  report  upon  the  ex- 
amination or  proper  standing  of  any  person  examined  here- 
under, or  aid  in  so  doing,  or  wilfully  or  corruptly  make  any 
false  representation  concerning  the  same  or  concerning  the 
person  examined,  or  wilfully  or  corruptly  furnish  to  any  person 
any  special  or  secret  information  for  the  purpose  of  either  im- 
proving or  injuring  the  prospects  or  chances  of  any  person  so 
examined  or  to  be  examined,  or  to  be  appointed,  employed  or 
promoted;  or  wilfully  impersonate  any  other  person  or  permit 
or  aid,  in  any  manner,  any  other  person  to  impersonate  him 
in  connection  with  any  examination  or  registration  or  applica- 
tion, or  request  to  be  examined  or  registered,  or  who  shall  make 
known  or  assist  in  making  known  to  any  applicant  for  examina- 
tion, in  advance  of  such  examination,  any  question  to  be  asked 
on  such  examination  shall  for  each  offense  be  deemed  guilty 
of  a  misdemeanor. 

Sec.  173.  [Bribery.]  No  applicant  for  appointment  in  said 
department,  either  directly  or  indirectly,  shall  pay  or  promise 
to  pay  any  money  or  other  valuable  thing  to  any  person  whom- 
soever, for  or  on  account  of  his  appointment  or  proposed  ap- 
pointment, and  no  officer  or  employe  shall  pay  or  promise  to 
pay  either  directly  or  indirectly  to  any  person  any  money  or 
valuable  thing  whatsoever  for  or  on  account  of  his  promotion. 

Sec.  174.  [Recommendations  for  appointment  or  promotion.] 
No  applicants  for  appointment  or  promotion  in  said  department 
shall  ask  for  or  receive  a  recommendation  or  assistance  from 


413  the  ohio  municipal  code.  [Code  §§  175-177 

any  officer  or  employe  in  said  department  or  any  other  depart- 
ment of  the  city  government,  or  from  any  person,  upon  the 
consideration  of  any  political  service  rendered  or  to  be  rendered 
to  or  for  any  such  person,  or  for  the  promotion  of  such  person 
to  any  office  or  appointment. 

Sec.  175.  [Political  assessments  and  contributions.]  No  per- 
son shall  solicit  orally  or  by  letter,  or  be  in  any  manner  con- 
cerned in  soliciting  any  assessment,  contribution  or  payment 
for  any  party  or  any  political  purpose  whatsoever  from  any 
officer  or  employe  who  is  included  within  the  department  of 
public  safety  of  the  city  government  of  any  such  city. 

Sec.  176.  [Political  assessments  and  contributions.]  No  per- 
son shall  in  any  room  or  building  occupied  for  the  discharge  of 
the  official  duties  of  any  officer  or  employe  in  the  department  of 
public  safety  of  any  city,  solicit  orally  or  by  written  communi- 
cation, delivered  therein,  or  in  any  other  manner,  or  receive 
therein  any  contribution  of  money  or  other  thing  of  value  for 
any  party  or  political  purpose  whatsoever.  No  officer,  agent, 
clerk  or  employe  in  the  government  of  such  city  who  may  have 
charge  of  or  control  of  any  building,  office  or  room  occupied 
by  the  department  of  public  safety  or  any  branch  thereof,  for 
any  such  purpose,  shall  permit  any  person  to  enter  the  same 
for  the  purpose  of  therein  soliciting  or  delivering  written  or 
oral  solicitations  or  receiving  or  giving  notice  of  any  political 
assessments. 

Sec.  177.  [Political  assessments  and  contributions.  J  No  officer 
or  employe  in  the  department  of  public  safety  shall  directly  or 
indirectly  give  or  hand  over  to  any  officer  or  employe  in  said 
department  or  to  any  officer,  or  employe  in  said  service  or  to 
any  public  official  or  other  person  whomsoever  any  money  or 
other  valuable  thing  on  account  of  or  to  be  applied  to  the  pro- 
motion of  any  party  or  political  object  whatever. 


Code  §§  178-181]  cities,    dep't  of  public  safety.  414 

Sec.  178.  [Political  assessments  and  contributions.]  No  offi- 
cer or  employe  in  the  classified  service  of  any  city  shall  dis- 
charge, degrade  or  promote  or  in  any  manner  change  the  official 
rank  or  compensation  of  any  officer  or  employe  in  the  depart- 
ment of  public  safety  or  promise  or  threaten  to  do  so  on  account 
of  such  officer  or  employe  withholding  or  neglecting  to  make  any 
contribution  of  money  or  other  valuable  thing  to  any  party  or 
political  purpose,  or  for  refusal  or  neglect  to  render  any  party 
or  political  service. 

Sec.  179.     [Corrupt   use   of  political  authority  or  influence.] 

No  person  while  holding  any  office  in  the  department  of 
public  safety  or  while  seeking  nomination  therefor,  or  election 
thereto,  or  appointment  to  any  such  office,  shall  corruptly  use 
or  promise  to  use,  either  directly  or  indirectly,  any  official  au- 
thority or  influence  (whether  then  possessed  or  merely  antici- 
pated) in  the  way  of  conferring  upon  any  person  or  in  order 
to  secure  or  aid  any  person  in  securing  any  office  or  public 
employment,  or  any  nomination,  confirmation,  promotion  or 
increase  of  salary  upon  the  consideration  or  condition  that  the 
vote  or  political  influence  or  action  of  the  last  named  person  or 
any  other,  shall  be  given  or  used  in  behalf  of  any  candidate, 
officer,  or  party,  or  upon  any  other  corrupt  condition  or  consider- 
ation. 

Sec.  180.  [Auditor  shall  not  allow  claims  for  services  of  per- 
sons employed  in  violation  of  this  act.]  No  clerk,  auditor  or  ac- 
counting officer  of  any  city  shall  allow  the  claim  of  any  public 
officer  for  services  of  any  deputy  or  other  person  employed  in 
the  department  of  public  safety  in  violation  of  the  provisions 
of  this  act 

Sec.  181.     [Mayor's  certification  to  auditor  of  appointments  and 

vacancies.]  The  mayor  shall  certify  to  the  auditor  all  appoint- 
ments to  offices  and  places  in  the  department  of  public  safety 


415  the  ohio  municipal  code.  [Code  §§  182,  183 

of  such  city,  and  all  vacancies  occurring  therein,  whether  by 
dismissal,  removal,  resignation  or  death,  and  the  date  thereof. 

Sec.  182.  [Kefusal  to  obey  subpoena.]  Any  person  who  shall 
be  served  with  subpoena  to  appear  and  testify  or  to  produce 
books  and  papers,  which  subpoena  has  been  issued  by  the  mayor 
or  by  any  person  appointed  by  or  acting  under  his  control,  in 
the  course  of  an  investigation  conducted  under  the  provisions 
of  section  169  of  this  act,  and  who  shall  refuse  or  neglect  to 
appear  or  testify,  or  to  produce  books  and  papers  relevant  to 
said  investigation  as  noted  in  such  subpoena  shall  be  guilty  of 
a  misdemeanor,  and  shall,  on  conviction,  be  punished  as  pro- 
vided in  section  183  of  this  act. 

[Witness*  fees  and  mileage.]  The  fees  for  witnesses,  for  at- 
tendance and  travel  shall  be  the  same  fees  as  witnesses  receive 
before  the  court  of  common  pleas  of  this  state,  which  fees  and 
the  fees  of  the  officer  serving  such  witnesses  shall  be  paid  from 
the  appropriation  for  the  expenses  of  said  department. 

[Procedure  for  compelling  attendance  of  witnesses;  perjury.] 
The  court  of  common  pleas  of  the  county  in  which  such  city 
is  situate,  or  any  judge  of  said  court,  either  in  term  time  or 
vacation,  upon  application  of  the  mayor,  or  his  appointee,  may, 
in  his  or  their  discretion,  compel  the  attendance  of  witnesses, 
the  production  of  books  and  papers  and  the  giving  of  testimony 
before  such  mayor  or  appointee,  by  attachment  for  contempt  or 
otherwise,  in  the  same  manner  as  the  production  of  evidence 
may  be  compelled  before  said  court.  Every  person,  who,  having 
taken  oath  or  made  affirmation  before  said  mayor,  or  his  ap- 
pointee conducting  an  examination  and  authorized  to  admin- 
ister oaths,  shall  wilfully  swear  or  affirm,  corruptly  or  falsely, 
shall  be  guilty  of  perjury,  and  upon  conviction  shall  be  punished 
accordingly. 

Sec.  183.  [Penalty  for  violation  of  this  act  relating  to  the 
merit  system.]      Any  person  who  shall  wilfully  or  through  cuip- 


Code  §§  184-186]  cities,     dep't  of  public  safety.  416 

able  negligence,  violate  any  of  the  provisions  of  this  act,  relating 
to  the  merit  system  in  the  department  of  public  safety,  or  of  any 
rule  promulgated  in  accordance  with  the  provisions  thereof, 
shall  be.  guilty  of  a  misdemeanor,  and  shall,  on  conviction 
thereof,  be  fined  in  a  sum  of  not  less  than  fifty  dollars  and  not 
exceeding  one  thousand  dollars,  or  be  imprisoned  in  the  county 
jail  for  a  term  hot  exceeding  six  months,  or  both,  in  the  discre- 
tion of  the  court. 

Sec.  184.  [Conviction  under  preceding  section  shall  work  for- 
feiture of  office  and  disqualification  to  hold.]  If  any  person  shall 
be  convicted  under  the  next  preceding  section,  any  public  office 
or  place  of  public  employment  which  such  person  may  hold, 
shall  by  force  of  such  conviction  be  rendered  vacant,  and  such 
person  shall  be  incapable  of  holding  any  office  or  place  of  public 
employment  in  such  city  for  the  period  of  live  years  from  the 
date  of  such  conviction. 

Sec.  185.  [Prosecutions,  who  to  institute.]  Prosecutions  for 
violations  of  the  merit  system,  as  contained  in  this  act,  shall  be 
instituted  by  the  prosecuting  attorney  of  the  county  in  which 
the  offense  is  alleged  to  have  been  committed,  by  the  city  solici- 
tor, or  by  the  mayor,  acting  through  special  counsel,  employed 
by  him,  and  said  suits  shall  be  conducted  and  directed  by  the 
prosecuting  officers  who  institute  them  unless  they  request  the 
aid  of  other  prosecuting  officers. 

Sec.  186.  [Right  of  person  removed  by  the  mayor  to  appeal  to 
board  of  public  safety.]  Any  person  in  the  department  of  pub- 
lic safety  in  any  city  who  shall  be  removed  from  his  position  of 
employment  or  appointment,  by  the  mayor,  shall  have  the  right 
to  appeal  from  the  decision  of  such  officer,  to  the  board  of  public 
safety  within  ten  days  from  and  after  the  date  of  his  removal, 
and  said  board  of  public  safety  shall  hear  said  appeal  within 
ten  days  from  and  after  the  filing  of  the  same  with  it,  and  its 
judgment  in  the  matter  shall  be  final.1 


417  the  ohio  municipal  code.         [Code  §  187 

(1)   Trial     and     removal. —  The  by  majority  of  trial  board  is  suffi- 

action   of    the    proper    tribunal    for  cient.     State  ex  rel.  v.  Barrett,  22 

the  removal  of  a  police  officer  was,  C.  C.  104. 

under  former  statutes,  held  final  so  A  finding  "  from  the  evidence  and 

far    as    the    question    of    the    truth  also    from    facts    within    personal 

of  the  charges  is  concerned.     State  knowledge "   is   not   a   proper   exer- 

ex  rel.   v.    Barrett,    22    C.   C.    104;  cise  of  power,  unless  the  facts  are 

State   ex  rel.  v.   Hyman,   22   C.   C.  shown  and  an  opportunity  to  refute 

213;    State   ex  rel.   Hussey   v.   Hy-  them  given.     State  v.    Sullivan,   58 

man,  21  C.  C.  187.  O.  S.  504. 

As  to  definiteness  of  charges,  see  Nature    of   power   of   removal, 

State  ex  rel.  v.  Barrett,  22  C.   C.  remedies,  etc. —  See  notes  to  §  225 

104.  of   the  Code. 

Proceedings  in  trial. —  Decision 

(d)     boaed  of  health.1 

Sec.  187.  [Board  of  health ;  appointment,  etc. ;  when  board  of 
pnblic  service  may  be.]2  The  council  of  each  city  and  village 
shall  establish  a  board  of  health;3  such  board  shall  be  com- 
posed of  five  members  to  be  appointed  by  the  mayor  and  con- 
firmed by  the  council  who  shall  serve  without  compensation 
and  a  majority  of  whom  shall  constitute  a  quorum;  provided, 
that  whenever  the  council  of  any  city  shall  declare  by  ordinance 
that  it  will  be  for  the  best  interests  of  said  city  that  the  board 
of  public  service  act  as  a  board  of  health  for  the  city,  then 
upon  the  passage  of  said  ordinance  the  board  of  public  service 
of  said  city  shall  be  the  duly  authorized  board  of  health  thereof 
and  shall  have  all  the  powers  and  perform  all  the  duties  pre- 
scribed by  law  for  boards  of  health;  and  the  mayor  shall  be 
president  by  virtue  of  his  office.  In  villages  the  council  may 
appoint  a  health  officer  instead  of  a  board  of  health  and  fix  his 
salary  and  term  of  office,  such  appointee  to  be  approved  by  the 
state  board  of  health,  who  shall  have  all  the  powers  and  perform 
all  the  duties  granted  to  or  imposed  upon  boards  of  health, 
except  that  all  rules,  regulations  or  orders  of  a  general  char- 
acter and  required  to  be  published,  made  by  such  health  officer, 
shall  be  approved  by  the  state  board  of  health. 

[In  what  cases  state  board  of  health  may  appoint  health  officer.] 
And  if  any  city,  village  or  township  fails  or  refuses  to  establish 
a  board  of  health  or  appoint  a  health  officer,  the  state  board 


Code  §  187] 


CITIES.        BOARD    OF  HEALTH. 


418 


of  health  may  appoint  a  health  officer  for  such  city,  village  or 
township  and  fix  his  salary  and  term  of  office,  and  such  health 
officer  shall  have  the  same  powers  and  duties  as  health  officers 
appointed  in  villages  in  lieu  of  a  board  of  health,  as  •  herein 
provided,  and  the  salary  of  such  health  officer,  as  fixed  by  the 
state  board  of  health,  and  all  necessary  expenses  incurred  by 
him  in  performing  the  duties  of  a  board  of  health  shall  be  paid 
by  and  be  a  valid  claim  against  the  city,  village  or  town- 
ship for  which  such  health  officer  is  appointed  to  serve. 
[1904,  April  26,  97  v.  460.] 


(1)    Board   of   health   statutes 
re-enacted    by    the     Code. —  The 

laws  on  the  subject  of  boards  of 
health  formerly  comprised  Chap.  1, 
Div.  6,  Title  XII.  of  Bates'  Re- 
vised Statutes,  §§  2113  to  2148-9, 
inclusive.  This  entire  chapter  was 
redrafted  by  the  Legislature  on  May 
7,  1902,  and  all  the  sections  there- 
in (except  2122-1,  referring  to  gar- 
bage crematory  in  Columbus;  2131a, 
referring  to  sanitary  police  in 
Cleveland;  2132a,  providing  rules 
in  certain  cities;  2134-1,  2134-2 
and  2134-3,  regulating  sale  of  ice; 
2141-1,  abolishing  board  in  certain 
villages;  2142a,  21426,  2142c,  21420* 
and  2142e,  providing  for  sanitary 
plants;  2142e-l  to  2142e-7,  inclu- 
sive, authorizing  sanitary  boards 
in  certain  cities;  and  2148-1  to 
2148-9,  inclusive,  establishing  a  san- 
itary police  pension  fund  in  Cleve- 
land), were  repealed,  and  new  sec- 
tions substituted,  numbered  from 
2113  to  2148,  without  regard  to  the 
particular  subject  matter  of  the  old 
sections.  (95  0.  L.  421).  The  new 
Code,  in«§  189,  infra,  re-enacts  all 
these  sections,  as  thus  amended  and 
renumbered,  except  2113,  2114,  2117 
and  2133.  Of  these,  2113  and  2133 
are  repealed  by  the  Code;  2114  is 
re-enacted  as  later  amended  May  12, 
1902  (95  O.  L.  643),  and  2117  is 
neither  re-enacted  nor  expressly  re- 
pealed. §§2115  and  2128  were  again 
amended    in    1904    and    2122    was 


again  amended  in  1906.  This  edi- 
tion of  the  Code,  therefore,  con- 
tains, under  §189,  §§2115  to  2148 
R.  S.,  inclusive,  as  amended  May  7, 
1902,  (2115,  2122,  2128  being  given 
as  last  amended)  and  §2114  as 
amended  May  12,  1902.  For  sec- 
tions carried  in  Part  II.  see  next 
succeeding  note. 

Board  of  health  statutes  in 
Part  II. — Under  Board  of  Health 
in  Part  II.  will  be  found  all  sec- 
tions of  the  Revised  Statutes  on 
this  subject  not  re-enacted  in  §  189 
of  the  Code,  or  not  expressly  re- 
pealed by  the  Code,  except  §§  2148-1 
to  2148-9,  inclusive,  which  estab- 
lished a  sanitary  police  pension 
fund  in  Cleveland,  and  which  are 
now  superseded  by  the  general  act 
on  police,  fire  and  sanitary  police 
pension  funds,  re-enacted  in  §§  155 
of  the  Code.  The  sections  thus  car- 
ried in  Part  II.  are  as  follows: 
§§  2117  as  amended  May  12,  1902 
(95  0.  L.  424);  2122-1;  2131a; 
2132a;  2134-1;  2134-2;  2134-3, 
2141-1;  2142a,  21426,  2142c,  2142a", 
2142e;  2142e-l  to  2142e-7  inclusive, 
§§  409-26,  409-28  and  an  act  relating 
to  garbage  bonds  (95  O.  L.  477)  are 
also  carried  in  Part  II. 

(2)  Old  section  2113  R.  S.  re- 
pealed. 

(3)  Defective  ordinance. — 
Where  an  ordinance  establishing  a 
board  of  health  was  defective  be- 
cause not  read  three  times  it  was 


4:19  the  ohio  municipal  code.  [Code  §   188 

held  that  the  board  was  neverthe-  exercise  them   in   a  most  summary 

less  a   de  facto  board  and  its  acts  manner.     16. 

valid.    Smith  v.  Lynch,  29  O.  S.  261.  Majority    of    quorum    of    health 

Character  of  board. —  Boards  of  board  was  held  sufficient  to  transact 

health,    as   such,    were   held   not   to  business.     State  ex  rel.  v.  Massillon, 

be    bodies    corporate    and    to    have  13  Dec.  292;   24  C.  C.  249,  2  C.  C. 

no    express    statutory    authority   to  (N.  S.)    167. 

maintain  a  suit  to  prevent  the  pol-  Provision    mandatory    requiring 

lution  of  a  stream,  or  to  sue  or  be  council    to     establish     a     board     of 

sued    upon    any    cause    of    action.  health.     State  ex  rel.  v.  Massillon, 

Board    of   Health   v.    Columbus,    12  24  C.  C.  249,  253;  2  C.  C.    (N.  S.) 

Dec.  553.  167. 

Such    boards   have    certain    legis-  Appointment     of     member     to 

lative,  quasi  judicial  and  executive  place  under  board  not  valid.    State 

powers,    and    may,    in    some    cases,  ex  rel.  v.  Newark,  6  N.  P.  523. 

FORM  OF   ORDINANCE   TO    ESTABLISH  BOARD   OF   HEALTH. 
Ordinance  No 

To  Establish  a  Board  of  Health. 

Be  it  ordained  by  the  council  of  the  city  [or  village]  of , 

State  of  Ohio, 

Sec.  1.  That  under  and  in  pursuance  of  the  authority  conferred  and  the 
duty  imposed  upon  council  by  an  act  entitled,  "  An  act  to  provide  for  the 
organization  of  cities  and  incorporated  villages,  and  to  restrict  their  power 
of  taxation,  assessment,  borrowing  money,  contracting  debts,  and  loaning 
their  credit  so  as  to  prevent  the  abuse  of  such  power,  as  required  by  the 
constitution  of  Ohio,  and  to  repeal  all  sections  of  the  Revised  Statutes  in- 
consistent herewith,"  passed  by  the  General  Assembly  of  Ohio  in  extra- 
ordinary session  on  the  22nd  day  of  October,  1902,  that  the  council  establish 
and  it  does  hereby  establish  a  Board  of  Health  for  the  said  city  [or  village] 

of ,   to  be  constituted  and  its  members  appointed  in 

accordance  with  §  187  of  said  act  above  referred  to.  The  members  of  the 
Board  of  Health  shall  give  bond  in  the  sum  of  $ 

Sec.  2.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed 19 


President  of  Council. 
Attest: Clerk. 

Sec.  188.  [Quarantine  regulations.]  *  The  state  board  of 
health,  or  the  board  of  health  of  any  city,  village  or  township, 
in  time  of  epidemic  or  threatened  epidemic,  or  when  any  danger- 
ous communicable  disease  is  unusually  prevalent,  may,  after  a 
personal  investigation  by  the  members  or  executive  officer  of 
such  board  to  establish  the  facts  in  the  case,  and  not  otherwise, 
impose  a  quarantine  on  vessels,  railroads,  stages,  or  any  other 
public  or  private  vehicles  conveying  persons,  baggage  or  freight, 


Code  §  189]         cities,     boakd  of  health.  420 

or  used  for  such,  purpose,  and  may  make  and  "enforce  such  rules 
and  regulations  as  such  board  may  deem  wise  and  necessary 
for  the  protection  of  the  health  of  the  people  of  the  community 
or  state;  provided,  however,  that  the  running  of  any  train  or 
of  any  cars  on  any  steam  or  electric  railroad,  or  of  steamboats, 
vessels  or  other  public  conveyances  shall  not  be  prohibited.  A 
true  copy  of  such,  quarantine  rules  and  regulations  adopted 
by  a  local  board  of  health,  shall  be  immediately  furnished  by 
such  board  to  the  state  board  of  health.  Such  quarantine  rules 
and  regulations,  when  established  by  a  local  board  of  health, 
after  careful  investigation  by  the  state  board  of  health,  may  be 
altered,  relaxed  or  abolished  by  order  of  said  state  board  and 
thereafter  no  change  shall  be  made  except  by  the  order  of  the 
state  board  of  health,  or  by  the  local  board,  to  meet  some  new 
and  sudden  emergency. 

( 1 )    Old  section.—  This  embodies  Bates'  Revised  Statutes.     ( §  212  of 

the    provisions    of    old    §    2133    as  the  Code.) 

numbered    in    the    amendments    to  In    the    amendments    in    95    Ohio 

§§  2113  to  2148  R.  S.}  inclusive,  in  Laws,  the  numbering  of  the  sections 

95  O.  L.  421.     The  repeal  of  §  2133  is    changed.     §    2133   R.    S.    related 

in  §  231  of  the  Code  was  evidently  to    milk    inspectors,    while   2133    in 

intended  to  mean   §    2133   as  num-  the  amendments  relates  to  quaran- 

bered  in  the  amendments  in  95   O.  tine,  corresponding  to  the  provisions 

L.    421,    and    not    as    numbered    in  in  the  section  of  the  Code  above. 

Sec.  189.  [Certain  laws  not  repealed;  quarantine  regulations.] 
The  board  of  health  herein  provided  for  shall  have  all  the 
powers  and  perform  all  the  duties,  not  inconsistent  with  this 
act,  which  are  conferred  or  required  in  sections  2115,  2116, 
2118,  2119,  2120,  2121,  2122,  2123,  2124,  2125,  2126,  2127, 
2128,  2129,  2130,  2131,  2132,  2134,  2135,  2136,  2137,  2138, 
2139,  2140,  2141,  2142,  2143,  2144,  2145,  2146,  2147  and 
2148  of  the  Revised  Statutes  of  Ohio,  as  amended  May  7, 
1902  (95  O.  L.,  421),  and  section  2114,  of  the  Revised  Statutes 
of  Ohio,  as  amended  May  12,  1902,  (95  O.  L.,  643),  and  for 
all  purposes  such  sections  as  amended  shall   remain  in  full 


421  the  ohio  municipal  code.         [Code  §  189 

force  and  effect;  and  nothing  herein  contained  shall  be  held 
to  impair,  restrict  or  repeal  any  portion  of  the  act  passed  April 
23,  1902,  entitled  "An  act  authorizing  the  levy  of  taxes  in 
municipalities  to  provide  for  firemen's,  police  and  sanitary 
police  pension  or  relief  funds,  and  to  create  and  perpetuate 
boards  of  trustees  for  the  administration  of  such  funds  " ;  ■ 
provided,  further,  that  local  boards  of  health  shall  not  have 
power  to  close  public  highways  or  to  prohibit  travel  thereon, 
nor  to  interfere  with  public  officers  not  afflicted  with  or  directly 
exposed  to  any  contagious  or  infectious  disease,  in  the  dis- 
charge of  their  official  duties;  nor  to  establish  a  quarantine  of 
one  city,  village  or  township  against  another  city,  village  or 
township,  as  such,  without  permission  first  obtained  from  the 
state  board  of  health,  and  under  such  regulations  as  may  be 
established  by  the  state  board.  All  employes  2  now  serving  in 
the  health  department  shall  continue  to  hold  their  said  positions 
and  shall  not  be  removed  from  office  or  reduced  in  rank  or  pay, 
except  for  cause,  assigned  and  after  a  hearing  has  been  afforded 
them  before  the  board. 

(1)  Pension  laws. —  For  these  cer  is  not  an  employe  as  that  word 
laws  see  §  155  of  the  Code,  page  is  used  in  this  section.  State  ex 
392.  rel.  v.  Craig,  69  O.  S.,  236. 

(2)  Employes.— The  health  offi- 

Sec.  2114  R.  S.  [Term  of  office  of  members.]  The  term  of 
office  of  the  members  of  the  board  shall  be  five  years  from  the 
date  of  appointment,  and  until  their  successors  are  appointed 
and  qualified,  except  that  those  first  appointed  shall  be  classi- 
fied as  follows:  One  to  serve  for  five  years;  one  for  four 
years;  one  for  three  years;  one  for  two  years,  and  one  for  one 
year,  and  thereafter  one  shall  be  appointed  anually.  Provided 
that  in  all  municipalities  now  having  a  board  of  health,  in 
place  of  the  two  members  of  such  board  of  health  whose  term 
of  office  shall  first  expire,  one  shall  be  appointed  for  five  years. ; 
in  place  of  the  two  members  of  the  board  whose  term  of  office 
shall  next  expire  one  shall  be  appointed  for  two  years,  and  one 
for  three  years,  and  in  place  of  the  two  members  of  the  board 
whose  term  of  office  shall  thereafter  expire  one  shall  be  ap- 
pointed for  four  years,  and  one  for  five  years,  and  thereafter 


Code  §  189]        cities,     board  of  health.  421a 

< 

one  shall  be  appointed  annually.  [May  12,  1902,  95  v.  643 ; 
95  v.  423;  66  v.  201,  S.  &  S.  828.] 

Sec.  2115  R.  S.     [Board  shall  appoint  health  officer,  clerk,  etc.] 

The  board  of  health  shall  appoint  a  health  officer,1  who  shall 
be  the  executive  officer,  who  shall  furnish  his  name  and  address 
and  such  other  information  as  may  be  required  by  the  state 
board  of  health;  and  may  appoint  a  clerk,  and  may  appoint, 
with  the  consent  of  council,  as  many  ward  or  district  physi- 
cians, or  one  ward  physician  for  each  ward  in  their  city  as  they 
may  deem  necessary,  whose  duty  it  shall  be  to  care  for  the 
sick  poor  in  his  district  or  ward  and  to  care  for  the  person  or 
persons  quarantined  in  his  ward  when  such  person  or  persons 
are  unable  to  pay  for  medical  attendance,  and  to  care  for  all 
persons  sent  from  his  ward  to  the  municipal  pest  house  when 
such  persons  are  unable  to  pay  for  medical  attendance.  The 
board  of  health  shall  also  have  power  to  appoint,  with  the 
consent  of  council,  as  many  persons  for  sanitary  duty  as  in  its 
opinion  the  public  health  and  sanitary  condition  of  the  cor- 
poration may  require,  and  such  persons  shall  have  a  general 
police  powers,  and  be  known  as  the  sanitary  police.  The  board 
shall  have  exclusive  control  of  their  appointees,  and  define  their 
duties  and  fix  their  salaries,2  but  no  member  of  the  board  of 
health  shall  be  appointed  as  health  officer;  neither  shall  a 
member  of  the  board  of  health  nor  the  health  officer  be  ap- 
pointed as  one  of  the  ward  physicians.  All  such  appointees 
shall  serve  during  the  pleasure  of  the  board.  [97  v.  331;  95 
v.  423 ;  90  v.  88 ;  85  v.  59 ;  66  v.  202  (S.  &  C.  828). 

(1)  Provision  mandatory.— Sec.  Increase  of  salary,  of  health  offi- 
2115  providing  that  Boards  of  cer  while  in  office  is  valid;  health 
Health  shall  appoint  health  officers  officer  is  not  an  "  officer  or  ap- 
is mandatory  in  character  and  the  pointee "  within  the  meaning  of 
establishment  of  a  Board  of  Health  statute  prohibiting  Increase  of  sal- 
is  a  police  regulation  of  the  State,  ary  during  term  of  office.  lb. 
State  ex  rel.  v.  Massillon,  24  C.  C.  Term  of  appointees,  how  ended. 
249,  2  C.  C.   (N.  S.)   167.  —The   appointment  of   another   of- 

(2)  Certificate  of  funds  on  ficer  in  the  place  of  one  serving  as 
hand,  with  which  to  pay  health  offi-  appointee  of  the  board  indicates  the 
cer's  compensation  is  not  necessary  pleasure  of  the  board  that  the  for- 
before  the  board  makes  appropria-  mer  appointee  shall  no  longer  serve, 
tion  for  payment  of  his  services.  State  ex  rel.  v.  Craig,  69  O.  S.  236. 
Sec.  45  of  the  Code  does  not  apply. 

76. 


422  the  ohio  municipal  code.  [Code  §  189 


* 


Sec.  2116  R.  S.  [President  pro  tern.;  meetings  of  board;  duties 
of  clerk.]  The  board  of  health  in  cities  and  villages  shall  elect 
one  of  their  number  president  pro  tern.,  who  shall  preside  in  the 
absence  of  the  mayor,  and  shall  do  and  perform  all  duties  in- 
cumbent upon  the  president.  The  board  shall  meet  for  the 
transaction  of  business  at  least  once  in  each  calendar  month, 
and  as  much  oftener  as  is  necessary  for  the  prompt  and  thorough 
transaction  of  its  business.  All  special  meetings  of  the  board 
shall  be  called  by  the  president  or  three  members  thereof.  The 
clerk  of  the  board  shall  keep  a  full  and  accurate  record  of  all 
proceedings  of  the  board,  together  with  a  record  of  all  births, 
deaths  and  cases  of  contagious  diseases  reported  to  the  health 
officer,  and  at  the  expiration  of  his  term  of  office  shall  turn 
over  to  his  successor  all  books,  records,  papers,  and  other  matter 
belonging  to  the  board.  Each  board  of  health,  or  the  health 
officer  where  there  is  no  board  of  health,  shall  procure  suit- 
able books,  blanks,  and  other  things  actually  necessary  to  the 
transaction  of  its  business.  Among  the  books  to  be  procured 
and  kept  shall  be  a  suitable  book  or  books  for  the  registration 
of  births  and  deaths,  and  cases  of  infectious  or  contagious 
disease.      [95  v.  423;  Bates  K.  S.,  §  2120.] 


(1)  §  2117  R.  S.,  which  follows  health  in  townships.  For  this  sec- 
this  is  not  re-enacted  and  not  re-  tion,  see  under  Board  of  Health, 
pealed.     It     relates     to     boards     of      Part  II,  p.  593. 


Sec.  2118  R.  S.  [Orders  and  regulations  of  city,  village,  hamlet 
or  townshp  board.]  The  board  of  health  of  any  city,  village, 
hamlet  or  township  may  make  such  orders  and  regulations  as  it 
may  deem  necessary  for  its  own  government,  for  the  public 
health,  the  prevention  or  restriction  of  disease,  and  the  preven- 
tion, abatement  or  suppression  of  nuisances.1  All  orders  and 
regulations  not  for  the  government  of  the  board,  but  intended 
for  the  general  public,  shall  be  adopted,  advertised,  recorded 
and  certified  as  are  ordinances  of  cities  and  villages ;  2  and  the 
record  thereof  shall  be  given,  in  all  courts  of  the  state,  the  same 
force  and  effect  as  is  given  such  ordinances ;  and  in  townships 
the  posting  of  such  orders  and  regulations  in  five  conspicuous 
places  within  the  township  shall  be  deemed  a  sufficient  notice 
thereof.      [95  v.  424;  Bates  E.  S.,  §  2122.] 


Code  §   189] 


CITIES.      BOARD    OF    HEALTH. 


423 


( 1 )    Municipal   liability.  —  The 

municipality  or  its  officers  in  their 
official  capacity  are  not  liable  for 
damages  resulting  from  the  neg- 
ligence of  the  board  of  health  or 
health  officer.  Turner  v.  Toledo, 
15  C.  C.  627. 

Boards  of  health  are  invested  with 
legislative,  quasi- judicial  and  execu- 
tive or  governmental  powers,  in  the 
exercise  of  which,  proceedings  of  a 
most  summary  character  are  per- 
mitted, but  they  are  not  liable  for 
negligence  in  the  discharge  of  their 
official  functions.  Board  of  Health 
v.  Columbus,  12  Dec.  553. 

Scope  of  power. —  Boards  of 
health  have  power  to  make  reason- 
able regulations  for  the  sanitary 
inspection  of  houses  of  prostitution, 
and  the  examination  of  their  in- 
mates to  prevent  infectious  diseases 
and  to  promote  the  public  health. 
Cincinnati  v.  Allison,   12  Dec.   376. 

A  regulation  by  a  board  of  health 
requiring  all  known  prostitutes  to 
submit  to  a  personal  examination 
once  every  week  by  a  district  phy- 
sician and  providing  for  the  is- 
suance of  certificates  to  those  free 
from  venereal  disease  and  requiring 
the  expense  of  the  regulation  to  be 
paid  by  the  persons  examined,  is  not 
unreasonable;  but  the  fees  charged 
must  be  paid  into  the  city  treasury 
and  cannot  be  paid  directly  to  the 
physicians.     lb. 


The  board  may  require  all  physi- 
cians to  register,  but  it  cannot 
make  the  right  to  register  depend 
on  approval  of  officer  or  board  after 
passing  on  qualifications.  State  ex 
rel.  v.  Prendergast,  8  C.  C.  401. 

Whether  board  can  require  vacci- 
nation of  all  pupils  as  condition  to 
right  to  attend  school,  quere.  Carr 
v.  Board  Ed.,  1  N.  P.  (N.  S.)  602, 
13  Dec.  430;  such  power  is  prob- 
ably given  only  to  Board  of  Edu- 
cation. But  where  latter  board 
adopts  the  order,  it  may  be  enforced. 
lb. 

A  health  ordinance  requiring  a 
permit  from  the  board  of  health 
before  milk  could  be  sold  in  the 
city,  and  authorizing  examination 
and  inspection  of  milk  sold  and  the 
places  where  cows  were  kept,  was 
held  valid.  Walton  v.  Toledo,  23 
C.  C  547;  3  C.  C.  (N.  S.)  295, 
(aff'd  69  O.  S.  548). 

See  further  notes  to  paragraphs 
3  and  16,  §  7  of  the  Code,  pages  46 
and  55. 

Boards  of  health  as  such  are  not 
bodies  corporate,  and  have  no  ex- 
press statutory  authority  to  main- 
tain a  suit  to  prevent  the  pollution 
of  a  stream,  or  to  sue  or  be  sued 
upon  any  cause  of  action.  Board  of 
Health  v.  Columbus,  12  Dec.  553. 

(2)  See  §  124  of  the  Code,  page 
317. 


Sec.  2119  R.  S.  [Penalty  for  violation  of  this  act.]  Whoever 
violates  any  provisions  of  this  chapter,1  or  any  order  or  regula- 
tion of  the  board  of  health  made  in  pursuance  thereof,  or  ob- 
structs or  interferes  with  the  execution  of  any  such  order,  or 
wilfully  or  illegally  omits  to  obey  any  such  order,  shall  be  fined 
in  any  sum  not  exceeding  one  hundred  dollars  or  imprisoned 
for  any  time  not  exceeding  ninety  days,  or  both ;  but  no  person 


424  the  ohio  municipal   codb.  [Code  §189 

shall  be  imprisoned  under  this  section  for  the  first  offense,  and 
the  prosecution  shall  always  be  as  and  for  a  first  offense,  and 
unless  the  affidavit  upon  which  the  prosecution  is  instituted  con- 
tains the  allegation  that  the  offense  is  a  second  or  repeaated 
offense.      [95  v.  424;  Bates  E.  S.,  §  2137.] 

(1)    See  note  (1)  tc  §  187  of  the  Code,  page  418, 

Sec.  2120  R.  S.  [Violation  by  a  corporation.]  If  such  viola- 
tion, obstruction,  interference  or  omission  be  by  a  corporation, 
it  shall  forfeit  and  pay  to  the  proper  city,  village,  hamlet  or 
township,  any  sum  not  exceeding  three  hundred  dollars,  to  be 
collected  in  a  civil  action  brought  in  the  name  of  the  city,  vil- 
lage, hamlet  or  township;  and  any  officer  of  such  corporation 
having  authority  over  the  matter,  and  permitting  such  violation, 
shall  be  subject  to  fine  or  imprisonment,  or  both  as  heretofore 
provided.  The  judgment  herein  authorized  being  in  the  nature 
of  a  penalty,  or  exemplary  damage,  no  proof  of  actual  damages 
shall  be  required,  but  the  court  or  jury,  finding  other  facts  to 
justify  recovery,  shall  determine  the  amount  by  reference  to 
all  the  facts,  culpatory,  exculpatory  or  extenuating,  adduced 
upon  the  trial.      [95  v.  425;  Bates  K.  S.,  §  2138.] 

Sec.  2121  R.  S.  [Prosecutions;  how  instituted.]  Prosecutions 
under  this  chapter  1  and  the  civil  action  provided  for  in  the 
preceding  section,  shall  be  instituted  before  any  justice  of  the 
peace  within  the  county,  or  justice  of  the  peace,  mayor  or  police 
judge  of  the  city  or  village  where  the  offense  was  committed,  or 
the  offending  person  resides.  If  imprisonment  is,  or  may  be 
a  primary  penalty,  the  court  shall,  after  plea  of  not  guilty, 
unless  a  trial  by  jury  is  waived,  issue  a  venire  to  any  constable 
of  the  county,  containing  the  names  of  sixteen  electors  residing 
within  the  county,  to  serve  as  jurors  to  try  such  cause.  Each 
party  shall  be  entitled  to  two  peremptory  challenges,  and  chal- 
lenges for  cause  in  all  particulars,  as  in  criminal  cases  in  the 
court  of  common  pleas.  If  the  sixteen  names  be  exhausted 
without  obtaining  a  panel  of  twelve,  the  court  may  direct  the 
constable  to  summon  any  of  the  bystanders  to  fill  the  panel  to 
twelve,  or  on  demand,  shall  issue  other  venires  for  four  electors 
at  a  time,  until  the  panel  of  twelve  is  full.  In  prosecutions 
under  this  chapter,  no  deposit  for  costs  shall  be  required ;  and  a 
judgment  or  verdict  of  guilty  shall  be  immediately  followed 
by  sentence  and  execution  thereof,  unless  suspended  pending  the 
preparation  and  allowance  of  a  bill  of  exceptions;  and  all  fines 
collected  under  this  chapter  shall  be  paid  to  the  treasurer  of  the 


Code  §189]  cities,  board  of  health.  425 

municipality  or  township  and  credited  to  the  sanitary  fund  of 
the  board  of  health  instituting  the  prosecution.  No  fine  im- 
posed in  any  prosecution  under  this  section  shall  be  remitted 
by  the  magistrate  before  whom  the  complaint  is  made.  [95  v. 
425 ;  Bates  E.  S.,  §  2139.] 

(1)  See  note  (1)  to  $  187  of  the  Code. 

Sec.  2122  R.  S.  [Abatement  of  nuisances  by  board  of 
health.]  The  board  of  health  shall  abate  and  remove  all  nuis- 
ances within  its  jurisdiction.1  It  may  compel  the  owners, 
agents,  assignees,  occupants,  or  tenants  of  any  lot,  property, 
building  or  structure  upon  or  in  which  any  nuisance  may  be, 
to  abate  and  remove  the  same  by  orders  therefor,  and  treat 
the  neglect  or  refusal  to  obey  orders  for  such  purpose  as  a 
misdemeanor  punishable  as  hereinbefore  provided.  The  board 
of  health  may,  except  in  cities  having  a  building  department, 
or  otherwise  exercising  the  power  to  regulate  the  erection  of 
buildings,  regulate  the  location,  construction  and  repair  of  all 
water-closets,  privies,  cesspools,  sinks,  plumbing  and  drains; 
and  in  such  cities  having  such  departments  or  exercising 
such  power,  the  council  shall  by  ordinance  prescribe  such  rules 
and  regulations  as  are  approved  by  the  board  of  health,  and 
shall  provide  for  the  enforcement  thereof. 

The  board  may  also  regulate  the  location,  construction  and 
repair  of  all  yards,  pens  and  stables,  and  the  use,  emptying 
and  cleaning  thereof  and  of  all  water-closets,  privies,  cesspools, 
sinks,  plumbing,  drains,  or  other  places  where  offensive  or 
dangerous  substances  or  liquids  are  or  may  accumulate,  and 
when  any  building,  erection,  excavation,  premises,  business, 
pursuit,  matter  or  thing,  or  the  sewerage,  drainage,  plumbing, 
or  ventilation  thereof  is,  in  the  opinion  of  the  board  of  health, 
in  a  condition  dangerous  to  life  or  health,  and  when  any 
building  or  structure  is  occupied  or  rented  for  living  or  busi- 
ness purposes  and  sanitary  plumbing  and  sewerage,  are  feas- 
ible and  necessary,  but  neglected  or  refused,  the  board  of 
health  may  declare  the  same  a  public  nuisance  and  may  order 
the  same  to  be  removed,  abated,  suspended,  altered,  or  other- 
wise improved  or  purified  by  the  owner,  agent  or  other  person 
or  persons  having  control  of  the  same,  or  being  responsible  for 
the  condition;  and  the  refusal  or  neglect  to  obey  said  order 
shall  be  a  misdemeanor,  punishable  as  hereinbefore  provided. 
The  board  may  also,  by  its  officers  and  employes,  remove, 
abate,  suspend,  alter,  or  otherwise  improve  or  purify  the  same, 
and  certify  the  costs  and  expense  thereof  to  the  county  auditor, 
to  be  assessed  against  the  property,  and  thereby  made  a  lien 
upon  the  same,  and  collected  as  other  taxes.  [98  v.  188;  95  v. 
426;  Bates  R.  S.  (3rd  Ed.)  2116,  2128.] 

(1)   Nuisances, — See  notes  to  paragraph  3,  §  7  of  the  Code,  p.  46. 


4:26  the  ohio  municipal  code.  [Code  §189 

FORM  OF  NOTICE  TO  ABATE  NUISANCE. 

City    [or   village]    of , 

Office  of  the  Board  of  Health. 

19 

To 

You  are  hereby  notified  that  the  board  of  health  adopted  the  following 
resolution,  on ,  19 .... , 

"  Resolved,  that  in  the  opinion  of  the  board  of  health  the 

(here  name  the  nuisance)  on  the  following  described  premises  (here  describe 
premises ) ,  constitutes  a  public  nuisance  and  the  same  is  hereby  declared  to 

be  a  public  nuisance  and  ordered  to  be  abated,  by (here 

state  alteration,  disinfection  or  whatever  required )    within days 

after  the  service  of  notice  of  this  resolution  upon  the  owner  of  said  prem- 
ises, or  the  same  may  be  done  at  the  expense  of  the  city  [or  village]  and 
charged  to  said  owner,  and  assessed  against  his  property;  and  disobedience 
of  this  order  shall  be  punished  as  provided  by  law;  and  the  clerk  is 
directed  to  serve  notice  of  this  resolution  and  order  upon  the  owner,  agent 
or  other  person  having  control  of  or  occupying  said  premises." 

This  resolution  and  order  must  be  complied  with,  within days 

from  the  service  of  this  notice.  By  order  of  the  Board  of  Health. 

Clerk. 

Sec.  2123  It.  S.  [Proceedings  where  order  of  board  is  neg- 
lected or  disregarded.]  In  all  cases  where  the  order  of  the  board 
of  health  is  neglected  or  disregarded,  in  whole  or  in  part,  the 
board  may  elect  to  cause  the  arrest  and  prosecution  of  the  person 
or  persons  offending  as  hereinbefore  provided,  or  may  elect  to 
do  and  perform,  by  its  officers  and  employes,  what  the  offending 
party  should  have  done.  If  the  latter  course  is  chosen,  before 
the  execution  of  the  order  of  the  board  is  begun,  it  shall  cause 
a  citation  to  issue,  and  be  served  upon  the  person  or  persons 
responsible,  if  residing  within  the  jurisdiction  of  the  board ;  but 
if  not,  shall  cause  it  to  be  mailed  by  registered  letter  to  said 
person,  if  the  address  is  known  or  can  be  found  by  ordinary 
diligence ;  and  if  the  address  cannot  be  found  by  ordinary  dili- 
gence, shall  cause  the  citation  to  be  left  upon  the  premises,  in 
charge  of  any  person  residing  thereon;  otherwise  it  shall  be 
posted  conspicuously  thereon.  The  citation  shall  briefly  recite 
the  cause  of  complaint,  and  require  the  owner  or  other  person 
or  persons  responsible,  to  appear  before  the  board  of  health 
at  a  time  and  place  stated,  or  as  soon  thereafter  as  a  hearing  can 
be  had,  and  show  cause,  if  any,  why  the  board  should  not  pro- 
ceed and  furnish  the  material  and  labor  necessary  to,  and  re- 
move the  cause  of  complaint.  [95  v.  426;  Bates  R.  S.,  § 
2120.] 


Code  §189]  cities,   board  of  health.  427 

Sec.  2124 U.S.  [Further  proceedings.]  If  the  person  or  per- 
sons cited  appear,  he  or  they  shall  be  fully  apprised  of  the 
cause  of  complaint  and  given  a  fair  hearing.  The  board  shall 
then  make  such  order  as  it  deems  proper,  and  if  material  or 
labor  is  necessary  to  satisfy  the  order,  and  the  person  or  persons 
cited  promise,  within  a  definite  and  reasonable  time,  to  furnish 
the  same,  the  board  shall  grant  such  time ;  but  if  no  such  prom- 
ise is  made,  or  kept,  the  board  shall  furnish  the  material  and 
labor,  cause  the  work  to  be  done,  and  certify  the  cost  and  ex- 
pense to  the  auditor  of  the  county.  If  the  material  and  labor 
are  itemized,  and  the  statement  is  accompanied  by  the  certificate 
[of  the  president]  of  the  board,  attested  by  the  clerk,  reciting 
tiie  order  of  the  board,  and  that  the  amount  is  correct,  the  au- 
ditor shall  have  no  discretion,  but  shall  place  the  sum  against 
the  property  upon  which  the  material  a*nd  labor  were  expended, 
which  shall,  from  the  date  of  entry,  be  a  lien  upon  the  property, 
and  be  paid  as  other  taxes  are  paid.  [95  v.  426 ;  Bates  R.  S., 
§  2129.] 

Sec.  2125  R.  S.  [Duty  of  physician,  house  owner,  etc.,  to  give 
notice  of  prevalence  of  infectious  diseases;  duty  of  board  there- 
after.] Every  physician  or  other  person  called  to  attend  any 
person  who  is  suffering  from  smallpox,  cholera,  plague,  yellow 
fever,  typhus  fever,  diphtheria,  membranous  croup,  scarlet 
fever,  or  typhoid  fever,  or  any  other  disease  dangerous  to  the 
public  health,  or  required  by  the  state  board  of  health  to  be 
reported,  shall  report  the  same  to  the  health  officer  within  whose 
jurisdiction  such  person  is  found,  giving  in  such  report  the 
name,  age,  sex  and  color  of  the  patient,  and  the  house  or  place 
in  which  such  person  may  be  found ;  and  in  like  manner  it  shall 
be  the  duty  of  the  owner  or  agent  of  the  owner  of  a  building 
in  which  a  person  resides  who  has  any  of  the  diseases  herein 
named  or  provided  against,  or  in  which  are  the  remains  of  a 
person  having  died  of  any  such  disease,  and  the  head  of  the 
family,  immediately  after  becoming  aware  of  the  fact,  to  give 
notice  thereof  to  the  health  officer ;  and  when  complaint  is  made 
or  a  reasonable  belief  exists  that  an  infectious  or  contagious 
disease  prevails  in  any  house  or  other  locality  which  has  not 
been  reported  as  hereinbefore  required,  the  board  shall  cause 
such  house  or  locality  to  be  inspected  by  its  health  officer,  and 
on  discovering  that  such  infectious  or  contagious  disease  exists, 
the  board  may,  as  it  deems  best,  send  such  person  so  diseased 
to  a  quarantine  hospital  or  other  place  provided  for  such  per- 
sons, or  may  restrain  them  and  others  exposed  within  said  hons° 
or  locality  from  intercourse  with  other  persons,  and  prohibit 


428  the  ohio  municipal   code.  [Code  §189 

ingress  and  egress  to  or  from  such  premises.1      [95  v.   427; 
Bates  K.  S.,  §  2118  and  latter  part  of  §  2117.] 

(1)    Scope      of      power.  —  The  The  board  would  have   power  to 

power    here    given,    in    case    of    in-  make   a    contract  with   persons   for 

fectious    disease    in    any    house,    is  the  care  of  patients  with  infectious 

very    broad.      Under    it    the    board  diseases  quarantined  in  their  houses, 

may   quarantine    a   house,    and   the  and     the     municipality     would     be 

owner    could    not   recover    damages,  bound    by  this  contract.     lb. 
although  it  might  be  a  very  serious  Action      against      physician. — 

loss  to  him.     Turner  v.  Toledo,    15  Proper     action     against     physician 

C.  C.  627,  634.  for  failure  to  report  small  pox,  etc., 

If,  however,   an  injury  is  inflict-  was  held  to  be  a  civil  action  in  the 

ed   in   such   case,   by  malice   of  the  name    of   the    state    to    recover   the 

public  officers,  the  owner  would  have  penalty  and  not  by  warrant  for  ar- 

a  remedy.     lb.  .  rest.     State   v.   Chandler,    7   B.   97. 

Sec.  2126  R.  S.  [Quarantine  of  person  having,  or  having  been 
exposed  to,  contagious  disease.]  It  shall  be  the  duty  of  the  board 
of  health  when  a  case  of  smallpox,  cholera,  plague,  yellow  fever, 
typhus  fever,  diphtheria,  membranous  croup,  or  scarlet  fever  is 
reported  within  its  jurisdiction,  to  at  once  cause  to  be  placed  in  a 
conspicuous  position  on  the  house  wherein  any  of  the  aforesaid 
diseases  occur  a  quarantine  card  having  printed  on  it  in  large 
letters  the  name  of  the  disease  within,  and  to  prohibit  entrance 
to  or  exit  from  such  house  without  written  permission  from  the 
board  of  health;  and  no  person  quarantined  by  a  board  of 
health  on  account  of  having  a  contagious  disease,  or  for  having 
been  exposed  thereto,  shall  leave  such  quarantined  house  or 
place  without  the  written  permission  of  the  board  of  health ;  and 
every  physician  attending  a  person  affected  with  any  of  the 
aforementioned  diseases  shall  use  such  precautionary  measures 
to  prevent  the  spread  of  the  disease  as  may  be  required  by  the 
board  of  health.  No  person  shall  remove,  mar,  deface  or  destroy 
such  quarantine  card,  which  shall  remain  in  place  until  after 
the  patient  has  been  removed  from  such  house,  or  has  recovered 
and  is  no  longer  capable  of  communicating  the  disease,  and  the 
said  house  and  the  contents  thereof  have  been  properly  purified 
and  disinfected  by  the  board  of  health  ,and  where  other  inmates 
of  said  house  have  been  exposed  to  and  are  liable  to  become  ill 
of  any  of  said  diseases,  for  a  period  thereafter  counting  from 
the  completion  of  disinfection,  as  follows,  to-wit :  in  diphtheria 
or  membranous  croup,  14  days;  in  smallpox,  17  days;  in 
scarlet  fever,  10  days;  in  cholera  or  yellow  fever,  7  days;  in 
typhus  fever,  21  days;  and  in  cases  of  measles,  chickenpox  and 
whooping  cough,  or  either  of  them,  the  board  of  health  may 


Code  §189]  cities,  board  of  health.  429 

require  the  same  report  of  cases  and  may  enforce  the  same 
quarantine  and  other  preventive  measures  as  are  provided  for 
in  this  chapter  in  case  of  scarlet  fever,  or  diphtheria.  The 
board  of  health  may  employ  as  many  persons  as  it  deems  neces- 
sary to  execute  its  orders  and  properly  guard  any  house  or 
place  containing  any  person  or  persons  affected  with  any  of 
the  diseases  named  herein,  or  who  have  been  exposed  thereto, 
and  such  persons  shall  be  sworn  in  as  quarantine  guards,  shall 
have  police  powers,  and  may  use  all  necessary  means  to  enforce 
the  provisions  of  this  chapter  for  the  prevention  of  contagious 
or  infectious  disease,  or  the  orders  of  any  board  of  health  made 
in  pursuance  thereof.1     [95  v.  427. J 

(1)   As   to   contracts   under   this       C.  C.  822;  6  C.  C.   (N.  S.)  398. 
section,  see  Meily  v.   Columbus,  27 

Sec.  2127  It.  S.  [Penalty  for  appearance  in  public  place  of  per- 
son suffering  with  contagions  disease;  penalty  for  unlawful  dis- 
posal of  infected  property.]  Any  person  who,  while  suffering 
from  smallpox,  cholera,  plague,  yellow  fever,  diphtheria,  mem- 
branous croup,  scarlet  fever,  wilfully  or  unlawfully  exposes 
himself  in  any  street,  shop,  inn,  theatre  or  other  public  place 
or  public  conveyance,  or  being  in  charge  of  any  person  so  suffer- 
ing so  exposes  such  sufferer,  or  gives,  lends,  sells,  transmits  or 
exposes,  without  previous  disinfection  by  the  board  of  health, 
or  under  its  direction,  any  bedding,  clothing,  rags  or  other  thing 
which  has  been  exposed  to  infection  from  any  such  disease,  or 
who  knowingly  lets  for  hire  any  house,  room  or  part  of  a  house 
in  which  any  person  has  been  suffering  from  any  such  disease, 
prior  to  such  house,  room,  or  part  of  a  house  having  been  dis- 
infected by  the  board  of  health,  shall  be  guilty  of  a  misde- 
meanor and  punishable  as  hereinbefore  provided.      [95  v.  428. J 

Sec.  2128  R.  S.  [Disinfection  of  house  in  which  person  has  been 
ill  with  contagious  disease;  procedure;  destruction  of  infected  prop- 
erty; compensation  for  property  destroyed.]  It  shall  be  the  duty 
of  every  physician  who  is  attending  a  person  affected  with 
smallpox,  yellow  fever,  typhus  fever,  diphtheria,  membranous 
croup,  or  scarlet  fever,  when  such  person  has  recovered  and 
is  no  longer  liable  to  communicate  the  disease  to  others,  or  has 
died,  to  furnish  a  certificate  to  the  proper  board  of  health  of 
such  recovery  or  death,  and  as  soon  thereafter  as  the  board  of 
health  deems  it  advisable  its  health  officer  or  other  person  ap- 
pointed for  the  purpose  shall  thoroughly  disinfect  and  purify 
the  house  and  contents  thereof  in  which  such  person  has  been 
ill  or  has  died,  which  disinfection  and  purification  shall  be 
done  in  acordance  with  the  rules  and  regulations  adopted  and 
promulgated  by  the  state  board  of  health,  and  the  local  board 
of  health  may  purchase  such  disinfecting  apparatus  and  sup- 


430  the  ohio  municipal  code.         [Code  §  189 

plies  as  it  deems  necessary  for  such  purpose;  and  upon  the 
request  of  the  owner  or  occupant  of  any  dwelling  house,  or 
the  head  of  any  family,  the  board  of  health  shall  purify  and 
disinfect  any  room  which  has  been  occupied  by  any  person 
suffering  from  pulmonary  tuberculosis,  commonly  called  con- 
sumption, or  room  in  which  any  person  has  died  from  said 
disease ;  the  expenses  of  disinfection  shall  be  paid  by  the  local 
board  of  health,  and  said  board  may  destroy  any  infected 
clothing,  bedding,  or  other  article  which  cannot  be  made  safe  by 
disinfection,  and  shall  furnish  to  the  owner  thereof  a  receipt, 
of  which  it  shall  keep  a  full  and  accurate  copy,  for  articles  so 
destroyed,  which  receipt  shall  show  the  number,  character,  con- 
dition and  estimated  value  of  the  articles  destroyed  and  when 
any  buildings,  hut,  or  other  structure  has  become  infected  with 
smallpox  or  other  dangerous  communicable  disease,  and  cannot, 
in  the  opinion  of  the  board  of  health,  be  made  safe  by  disinfec- 
tion, the  board  may  have  such  building,  hut,  or  other  structure 
appraised  and  destroyed,  and  the  council  of  cities  and  villages, 
or  other  board  or  body  having  the  powers  of  council,  and  the 
trustees  of  hamlets  and  townships,  upon  the  presentation  of  the 
original  receipt  or  written  statement  of  the  appraisers  for  arti- 
cles or  houses  so  destroyed,  shall  pay  to  the  owner  thereof,  or 
other  person  authorized  by  the  owner  to  receive  the  same,  the 
estimated  value  of  such  destroyed  articles,  or  such  sum  as  the 
council  or  other  legislative  body  may  deem  a  just  compensation 
therefor,  and  in  the  event  the  owner  is  not  satisfied  with  the 
amount  so  allowed  he  may  sue  for  the  value  thereof. 

[Maintenance  of  person  confined  in  quarantined  house.]  When 
a  house  or  other  place  is  quarantined  on  account  of  contagious 
diseases  it  shall  be  the  duty  of  the  board  of  health  having  juris- 
diction to  provide  for  all  persons  confined  in  such  house  or 
place,  food,  fuel,  and  all  other  necessaries  of  life,  including 
medical  attendance,  medicine  and  nurses,  when  necessary;  and 
expenses  so  incurred,  except  those  for  disinfection,  quarantine, 
or  other  measures  strictly  for  the  protection  of  the  public,  when 
properly  certified  by  the  president  and  clerk  of  the  board  of 
health,  or  health  officer  where  there  is  no  board  of  health,  shall 
be  paid  by  the  person  or  persons  quarantined,  when  able  to  make 
such  payment,  and  when  not  by  the  city,  village,  hamlet  or 
township  in  which  he  or  they  were  quarantined,  provided  that 
when  a  person  with  a  contagious  disease  quarantined  in  any 
county  is  a  legal  resident  of  some  other  county  of  this  state,  and 
is  unable  to  pay  such  expenses,  they  shall  be  paid  by  the  county 
in  which  he  has  a  legal  residence,  if  notice  and  a  sworn  state- 
ment of  the  amount  of  such  expenses  are  sent  to  the  infirmary 
directors  of  said  county  within  thirty  days  after  the  quarantine 
in  such  case  was  discharged;   provided,   further,  that  the  ex- 


Code  §  189]  cities,     board  of  health.  431 

penses  for  quarantining  a  county  infirmary  or  other  county 
public  institution,  shall  be  paid  by  the  county  when  properly 
certified  by  the  president  and  clerk  of  the  board  of  health  or 
health  officer,  where  there  is  no  board  of  health,  of  the  mu- 
nicipality, or  township  in  which  said  institution  is  located. 
[1904,  May  3,  97  v.  540;  95  v.  428.] 

Sec.  2129  R.  S.  [Person  residing  in  quarantined  house  shall 
not  attend  any  public  gathering  until  quarantine  is  removed.] 
Xo  person  residing  in  or  occupying  any  house  in  which  there 
is  a  person  suffering  from  smallpox,  cholera,  plague,  typhus 
fever,  diphtheria,  membranous  croup,  or  scarlet  fever,  shall  be 
permitted  to  attend  any  public,  private,  or  parochial  school  or 
college  or  Sunday  school,  or  any  other  public  gathering,  until 
the  quarantine  provided  for  in  such  diseases  in  section  2126  has 
been  removed  by  the  board  of  health,  and  all  school  principals, 
Sunday  school  superintendents,  or  other  persons  in  charge  of 
such  schools,  are  hereby  required  to  exclude  any  and  all  such 
persons  until  such  time  as  they  may  present  a  written  permit 
of  the  board  of  health  to  attend  or  re-enter  such  schools.  [95 
v.  429.] 

Sec.  2130  R.  S.  [Hospital  for  treatment  of  persons  suffering 
from  contagious  disease;  bond  issue.]  The  council  or  other 
legislative  body  of  any  city  may  purchase  land  or  lands  within 
or  without  its  boundaries  and  erect  thereon  suitable  hospital 
buildings  for  the  isolation,  care  or  treatment  of  persons  suffer- 
ing from  a  dangerous  contagious  disease,  and  provide  for  the 
maintenance  of  such  hospital ;  the  plans  and  specifications  for 
such  building  or  buildings  shall  be  approved  by  the  board  of 
health,  and  the  council  or  other  legislative  body  is  hereby  autho- 
rized to  issue  bonds ;  if  after  an  election  held  for  that  purpose, 
two-thirds  of  the  votes  cast  at  said  election  are  in  favor  of  said 
issue,  in  any  amount  not  to  exceed  $25,000,  and  at  a  rate  of 
interest  not  to  exceed  5  per  cent  per  annum,  the  principal  to 
be  paid  within  ten  years  and  the  proceeds  applied  for  the  pur- 
poses aforesaid,  and  after  the  erection  of  such  hospital  buildings 
the  council  or  other  legislative  body  may  annually  make  such 
appropriations  for  their  use,  care  and  maintenance  as  in  its 
judgment  are  necessary.  Said  hospital  buildings  shall  be  under 
the  charge  and  control  of  the  board  of  health  of  such  city,  said 
board  to  appoint  all  employes  or  other  persons  necessary  to  the 
use,  care  and  maintenance  of  such  hospital  buildings,  and  to 
regulate  the  entrance  of  patients  thereto,  and  their  care  and 
treatment  therein.  When  any  person  suffering  from  any  dan- 
gerous contagious  disease  is  found  in  any  hotel,  lodging  house, 
boarding  house,  tenement  house  or  other  public  place  in  any 
city,  the  board  of  health  may,  if  it  deems  it  necessary  for  the 
protection  of  the  public  health,  remove  such  person  to  the  hos- 


432  the  ohio  municipal   code.  [Code  §189 

pital  herein  provided  for,  where  all  needful  provisions  shall 
be  made  for  his  care  and  treatment,  and  the  expenses  so  incurred 
shall  be  paid  by  such  person,  if  such  person  is  able  to  pay  said 
expenses. 

[Quarantine  hospital.]  Any  city,  village,  hamlet  or  township 
may  establish  a  quarantine  hospital,  within  or  without  its  own 
limits,  but  if  such  place  be  without  its  limits,  the  consent  of 
the  municipality  or  township  within  which  it  is  proposed  to 
establish  it  shall  be  first  obtained,1  provided  that  such  consent 
shall  not  be  necessary  if  such  hospital  is  more  than  800  feet 
from  any  occupied  house  or  public  highway;  and  when  great 
emergency  exists,  the  board  of  health  may  seize  and  occupy 
and  use  temporarily  for  such  quarantine  hospital  any  suitable 
vacant  house  or  building  within  its  jurisdiction,  and  the  board 
of  health  of  the  city,  village,  hamlet  or  township  having  a 
quarantine  hospital  shall  have  exclusive  control  of  the  same. 
[95  v.  430.] 

(1)     Pest    house. —  See    note    to 
§  2169  K.  S.  p.  366. 

Sec.  2131  R.  S.  [Disposal  of  bodies  of  persons  dying  of  conta- 
gious diseases.]  The  bodies  of  persons  who  have  died  of  small- 
pox, cholera,  plague,  yellow  fever,  typhus  fever,  diphtheria, 
membranous  croup,  scarlet  fever,  or  other  dangerous  contagious 
or  infectious  disease  shall  be  buried  or  cremated  within  twenty- 
four  hours  after  death  except  by  written  permission  of  the 
board  of  health,  and  no  public  or  church  funeral  shall  be  held 
in  connection  with  the  burial  of  a  person  who  has  died  of  any 
of  the  above  named  diseases,  and  the  body  of  any  such  person 
shall  not  be  taken  into  any  church,  chapel,  or  other  public 
place,  and  only  the  adult  members  of  the  family  and  such  other 
persons  as  are  actually  necessary  shall  be  present  at  the  burial 
or  cremation  of  such  body.      [95  v.  430.] 

Sec.  2132  It.  S.  [Admission  of  persons  suffering  with  contagious 
disease  into  prisons  or  benevolent  institutions.]  No  person  suf- 
fering from  smallpox,  or  other  dangerous  contagious  or  infec- 
tious disease  shall  be  sent  to  or  admitted  into  any  prison,  jail, 
workhouse,  infirmary,  childrens'  or  orphans'  home  or  state  hos- 
pital or  institution  for  the  insane,  epileptic,  blind,  feeble-mind- 
ed, or  deaf  and  dumb,  or  other  state  or  county  benevolent  insti- 
tution, and  no  person  who  has  been  exposed  to,  and  is  liable  to 
become  ill  of  any  such  disease  shall  be  sent  to  any  such  hospital, 
home  or  institution  hereinbefore  mentioned  without  first  mak- 
ing known  the  facts  concerning  such  exposure  to  the  superin- 
tendent, manager  or  other  person  in  charge  thereof;  and  when 
smallpox  or  other  dangerous  contagious  or  infectious  disease  is 
present  in  any  jail  or  prison,  and  a  prisoner  therein  who  has 


Code  §189]  cities,  board  of  health.  433 

been  exposed  to  any  such  disease  has  been  sentenced  to  the  peni- 
tentiary, such  prisoner  shall  be  confined  and  isolated  in  such 
jail  or  prison  or  other  proper  place  upon  the  order  of  the  proper 
court  for  such  time  as  is  necessary  to  establish  the  fact  that  he 
had  not  contracted  the  disease  to  which  he  was  exposed. 

[Contagious  disease  in  prison  or  benevolent  institution.]  When 
smallpox,  cholera,  yellow  fever,  diphtheria,  scarlet  fever  or 
other  dangerous  contagious  or  infectious  disease  appears  in  any 
prison,  jail,  workhouse,  infirmary,  childrens'  or  orphans'  home, 
state  hospital  for  the  insane,  or  epileptic,  or  institution  for  the 
blind,  feeble-minded  or  deaf  and  dumb,  or  other  state  or  county 
benevolent  institution,  the  superintendent  or  manager  thereof 
shall  at  once  isolate  the  person  or  persons  affected  with  any  such 
disease  and  enforce  the  provisions  of  this  chapter  for  the  pre- 
vention of  contagious  diseases,  in  so  far  as  they  can  be  applied, 
and  the  rules,  regulations  and  orders  of  the  state  board  of  health 
to  that  effect,  and  the  trustees  or  managers  of  any  such  institu- 
tion shall  have  authority  to  erect  any  necessary  temporary  build- 
ings for  the  reception  of  any  such  person  or  persons,  or  for  the 
detention  of  any  person  or  persons  who  have  beeen  exposed  to 
any  such  disease  and  may  remove  any  such  persons  to  and  con- 
fine them  in  such  building  or  buildings;  and  such  trustees  or 
managers  may  contract  for  the  care,  treatment  or  detention  of 
any  such  persons  with  any  corporation  having  a  hospital  or  other 
proper  place  for  the  isolation  and  care  of  persons  suffering  from 
contagious  disease,  or  exposed  thereto,  and  may  remove  such 
person  to  such  hospital  or  place,  provided  that  in  the  case  of 
persons  detained  in  any  institution  as  punishment  for  any  crime 
an  order  for  such  removal  shall  be  obtained  from  the  court  hav- 
ing imposed  such  punishment,  and  said  court,  in  such  order  for 
removal,  may  require  such  provisions  to  be  made  for  safely 
guarding  such  prisoner  while  in  such  hospital  or  place  as  it 
may  deem  necessary.      [95  v.  431.] 

Sec.  2134  R.  S.  [Effect  of  declaring  quarantine.]  Whenever 
quarantine  is  declared  all  railroads,  steamboats,  or  other  com- 
mon carriers,  and  the  owners,  consignees,  or  assignees  of  any 
railroad,  steamboat,  stage,  or  other  vehicle  used  for  the  trans- 
portation of  passengers,  baggage  or  freight,  shall  submit  to  any 
rules  or  regulations  imposed  by  any  board  of  health  or  health 
officer;  they  shall  submit  to  any  examination  required  by  the 
health  authorities  respecting  any  circumstance  or  event  touch- 
ing the  health  of  the  crew,  operatives  or  passengers,  and 
the  sanitary  condition  of  the  baggage  and  freight;  and 
any  owner,   consignee  or   assignee,   or  other  person   interest- 


434  the  ohio   municipal  code.  [Code  §189 

ed  as  aforesaid,  who  makes  any  unfounded  statement  or  dec- 
laration respecting  the  points  under  examination,,  shall,  upon 
conviction  thereof  before  any  court  or  justice  of  the  peace,  hav- 
ing jurisdiction  be  subjected  to  the  penalties  herein  provided 
for  violations  of  the  requirements  of  this  chapter  and  the  orders 
of  the  state  or  local  boards  of  health.  [95  v.  432  ;  Bates  R.  S., 
§   2144.] 

Sec.  2135  R.  S.  [To  whom  and  what  quarantine  rules  shall  ap- 
ply.] All  rules  and  regulations  passed  by  the  board  of  health 
or  health  officer,  shall  apply  to  all  persons,  goods,  or  effects  ar- 
riving by  railroad,  steamboat,  or  other  vehicle  of  transportation, 
after  quarantine  is  declared.  [95  v.  432 ;  Bates  R.  S.,  § 
2145.] 

Sec.  2136 U.S.  [Needful  buildings  may  be  erected;  disinfec- 
tion, etc.,  of  property.]  The  state  board  of  health  or  any  local 
board  of  health  shall  be  authorized  to  erect  any  temporary 
wooden  buildings  or  field  hospitals  deemed  necessary  for  the 
isolation  or  protection  of  persons  or  freight  supposed  to  be 
infected,  and  may  employ  nurses,  physicians  and  laborers  suf- 
ficient to  operate  the  same  properly,  and  sufficient  police  to 
guard  the  same.  The  board  of  health  may  cause  the  disinfec- 
tion, renovation  or  complete  destruction  of  bedding,  clothing, 
or  other  property  belonging  to  corporations  or  individuals, 
when  such  action  seems  to  such  board  necessary,  or  a  reasonable 
precaution  against  the  spread  of  contagious  or  infectious  dis- 
eases.     [95  v.  432 ;  Bates  R.  S.,  §  2146.] 

Sec.  2137  R.  S.  [Board  of  health  in  its  relation  to  schools  and 
school  buildings;  gratuitous  vaccination.]  The  board  of  health 
is  hereby  required  to  inspect  semi-annually,  and  oftener  if  in 
the  judgment  of  the  board  it  shall  be  deemed  necessary,  the 
sanitary  condition  of  all  schools  and  school  buildings  within 
its  jurisdiction  and  may,  during  an  epidemic  or  threatened  epi- 
demic, or  when  any  dangerous  communicable  disease  is  unusual- 
ly prevalent,  close  any  school  and  prohibit  public  gatherings  for 
such  time  as  it  may  deem  necessary,  and  may  disinfect  any 
school  building.  The  board  shall  abate  all  nuisances  and  may 
remove  or  correct  all  conditions  detrimental  to  health  or  well- 
being  found  upon  school  property  by  serving  an  order  upon 
the  board  of  education,  school  board,  or  other  person  or  persons 
responsible  for  such  property,  for  the  abatement  of  such  nui- 
sance or  condition  within  a  reasonable  but  fixed  time,  and  any 
person  failing  to  comply  with  such  order,  unless  it  is  shown  that 
there  was  good  and  sufficient  reason  therefor,  shall  be  fined  in 
any  sum  not  exceeding  one  hundred  dollars.     The  board  may 


Code  §189]  citibs.  board  of  health.  4#6 

appoint  such  number  of  inspectors  of  schools  and  school  build- 
ings as  it  may  deem  necessary  to  properly  carry  out  the  pro- 
visions of  this  section.  The  board  of  health  may  take  measures 
and  supply  agents  and  afford  inducements  and  facilities  for 
gratuitous  vaccination.      [95  v.  433 ;  Bates  E.  S.,  §  2135.] 

Sec.  2138  E.  S.  [Power  of  municipality  or  township  to  borrow 
money  and  levy  tax  therefor  in  time  of  epidemic  or  threatened  ep- 
idemic] In  case  of  any  epidemic,  or  threatened  epidemic,  or 
during  the  unusual  prevalence  of  any  dangerous  communicable 
disease,  the  council  of  any  city  or  village  or  trustees  of  any 
hamlet  or  township,  if  funds  are  not  otherwise  available,  shall 
borrow  until  such  time  as  the  next  levy  and  collection  thereof 
be  made,  and  at  a  rate  of  interest  not  to  exceed  six  per  cent, 
per  annum,  any  sum  of  money  that  the  local  board  of  health 
may  deem  necessary  to  defray  the  expenses  necessary  to  prevent 
the  spread  of  any  dangerous  communicable  disease,  and  the 
board  of  health  may  proceed  to  expend  the  amount  so  author- 
ized to  be  borrowed,  which  sum,  or  so  much  thereof  as  may 
be  expended,  sh&L*  be  a  valid  claim  against  the  city,  village, 
hamlet,  or  township,  payable  from  the  fund  so  created;  and 
when  expenses  are  incurred  by  the  board  of  health,  under  the 
provisions  of  this  chapter,1  it  bbnll  be  the  duty  of  council, 
upon  application  and  certificate  fro;r»  the  board  of  health, 
to  pass  the  necessary  appropriation  ordin^ees  to  pay  the  ex- 
penses so  incurred  and  certified;  and  the  council  is  hereby 
empowered  to  levy  (subject  only  to  the  restrictions  contained  in 
the  ninth  division  of  this  title).2  and  set  apart  the  necessary 
sum  to  pay  such  expenses,  and  to  carry  into  effect  the  provision? 
of  this  chapter,  and  the  provisions  of  section  2702  3  shall  not 
apply  to  the  necessary  expenses  of  the  board  of  health,  and  the 
trustees  of  each  township  may  annually  levy  and  set  aside  for 
the  expenses  of  the  township  board  of  health  such  sum  as  they 
deem  necessary.      [95  v.  433;  Bates  R.  S.  §§  2148.] 

(1)  See  note  (1)  under  §  187  of  enacted  in  §  96  of  the  Code,  and 
the  Code,  page  418.  the     provisions     corresponding     to 

(2)  The  ninth  division  of  Title  those  in  the  ninth  division  are  now 
XII.,  here  referred  to,  related  to  contained  in  §§  95  to  100  both  in- 
"  Finance  and  Taxation,"  and  con-  elusive,  and  §  32  to  49  both  inclu- 
tained  §§  2681   to    (2729-11)    R.  S.  sive,  of  the  Code. 

All  these  sections  are  repealed,  ex-  (3)     §    2702    is    repealed    by    the 

cept  2681   (relating  to  hamlets)  and  Code  and  the  provisions  correspond- 

2709    (identical   with   Code   §    97),  Ing  to  it  are  contained  in  §  45  of 

and    those    sections   which    are    re-  the  Code. 


436  the  ohio  municipal   code.  [Code  §189 

Sec.  2139  R.  S.  [Inspectors;  appointment  and  duties;  record  of 
meat  and  milk  dealers;  permit.]  The  board  of  health  may  ap- 
point  such  number  of  inspectors  of  dairies,  slaughterhouses, 
shops,  wagons,  appliances,  food  and  water  supplies  for  animals, 
milk,  meat,  butter,  cheese  and  substances  purporting  to  be 
butter  or  cheese,  or  having  the  semblance  of  butter  or  cheese 
and  such  other  persons  as  may  be  necessary  to  carry  out  the 
provisions  of  this  chapter,1  define  their  duties,  and  fix  their 
compensation,  and  the  health  officer  may  be  appointed  and 
authorized  by  said  board  to  perform  all  the  duties  of  such 
inspectors;  and  such  inspectors  may,  for  such  purpose,  enter 
any  house,  vehicle,  or  yard;  and  the  board  of  health  shall 
keep  for  public  inspection  a  record  of  the  names,  residences, 
and  places  of  business  of  all  persons  engaged  in  the  sale  of 
milk  or  meat,  and  may  require  permits,  to  be  renewed  semi- 
annually and  for  which  a  charge  of  not  more  than  fifty  cents 
may  be  made,  after  inspection,  to  vend  either  milk  or  meat, 
and  the  board  may  refuse  to  grant  such  permit  or  revoke  one 
already  given  if,  upon  inspection,  the  cows  or  milk  are  found  to 
be  kept  in  an  unsanitary  condition ;  and  the  board  may  require 
a  certificate  from  a  licensed  veterinarian  showing  the  cows  fur- 
nishing milk  brought  for  sale  within  its  jurisdiction  are  free 
from  tuberculosis  or  other  dangerous  disease,  and  should  scarlet 
fever,  typhoid  or  other  dangerous  contagious  or  infectious  dis- 
ease occur  in  the  family  of  any  dairyman  or  among  his  em- 
ployes, or  in  any  house  in  which  milk  is  kept  for  sale,  it  shall 
be  the  duty  of  such  dairyman  or  vendor  of  such  milk  to 
immediately  notify  the  health  officer  of  the  city,  village  or 
hamlet  in  which  such  milk  is  sold,  or  is  offered  for  sale,  of  the 
facts  of  the  case,  and  the  health  officer  may  order  the  sale  of 
such  milk  stopped,  pending  an  investigation  to  be  made  without 
delay,  and  for  such  time  thereafter  as  the  board  of  health 
may  require;  and  the  board  of  health  may  make  and  enforce 
such  orders  as  it  may  deem  necessary  to  prevent  the  sale  of 
impure,  adulterated,  and  unwholesome  milk,  or  milk  liable  to 
carry  disease.      [95  v.  434;  Bates  R.  S.  §  2133.] 

(1)   See  note  (1)  to  §  187  of  the  Code,  page  418. 


Sec.  2140 U.S.     [Places  where  meat,  butter,  cheese,  etc.,  are 
made,  subject  to  inspection;  analysis  of  milk,  butter,  etc.]  All  dai 
ries,  including  the  cows,  cow  stables,  milk-houses,  and  milk- 
vessels,  the  owners  of  which  offer  for  sale  within  the  limits  of 
the  corporation  milk  or  butter  manufactured  by  such  owners, 


Code  §189]  cities,  board  of  health.  437 

shall  be  subject  to  inspection  by  the  inspectors,  and  also  any 
manufactory  of  butter  or  cheese,  or  place  where  such  sub- 
stances or  either  of  them  are  sold,  shall  be  subject  to  inspection 
by  the  inspectors;  the  inspector  may  enter  any  place  where 
milk  is  sold,  or  kept  for  sale,  and  all  carriages  used  for  the 
conveyance  of  milk  within  the  corporate  limits;  and  also  any 
manufactory  or  place  where  butter  or  cheese,  or  substances  hav- 
ing the  semblance  of  butter  or  cheese,  are  manufactured,  or  any 
place  where  such  substances  are  sold,  or  kept  for  sale  within 
the  corporate  limits;  and  whenever  he  has  any  reason  to  be- 
lieve milk  found  therein  is  impure  or  adulterated,  or  any  but- 
ter or  cheese,  or  substances  having  the  semblance  of  butter  or 
cheese  found  therein  contain  any  impure,  unwholesome  or  dele- 
terious substances,  or  is  being  sold  or  offered  for  sale  under 
any  false,  or  deceptive  name  or  designation,  that  any  butter 
or  cheese  not  made  from  pure  cream  or  milk,  or  any  substance 
having  the  semblance  of  butter  or  cheese,  is  being  sold  or 
offered  for  sale,  without  being  branded  or  stamped,  as  re- 
quired by  section  seven  thousand  and  ninety,  he  shall  take 
specimens  thereof  and  subject  them  to  satisfactory  tests;  or, 
if  the  board  of  health  so  direct,  to  chemical  analysis,  the  result 
of  which  he  shall  record  and  preserve  as  evidence,  and  a  certi- 
ficate of  such  result,  sworn  to  by  the  analyst  shall  be  admis- 
sible in  evidence  in  all  prosecutions  under  this  chapter,  or 
any  law  of  this  state.      [95  v.  435  ;  Bates  K.  S.,  §  2134.] 

Sec.  2141  R.  S.  [Registration  of  births,  marriages,  deaths,  in- 
terments, etc.;  removal  or  conveyance  of  corpse.]  The  board  of 
health  may  create  a  complete  and  accurate  system  of  registra- 
t\on  of  births,  marriages,  deaths  and  interments  occurring  with- 
in its  jurisdiction,  for  the  purpose  of  legal  and  genealogical 
investigations.,  and  to  furnish  facts  for  statistical,  scientific 
[and  sanitary]  inquiries;  and  no  corpse  shall  be  buried  or  cre- 
mated within  the  state  of  Ohio,  or  taken  out  of  the  state  with- 
out a  permit  from  the  board  of  health  where  the  death  occurred, 
and  before  granting  such  permit  the  board  of  health,  if  the 
corpse  is  to  be  transported  beyond  its  jurisdiction,  shall  re- 
ceive from  the  undertaker  or  person  in  charge  of  the  corpse 
a  written  certificate  certifying  that  it  has  been  prepared  in 
accordance  with  the  rules  of  the  state  board  of  health,  and 
any  person  wilfully  making  a  false  statement  relative  to  the 
preparation  of  a  corpse  shall  be  punished  as  provided  in  section 
2119  of  this  chapter;  *  and  no  sexton,  superintendent,  or  other 
person  in  charge  of  any  cemetery,  burial  grounds,  or  crematory 
shall  receive  a  corpse  for  burial,  or  cremation,  unless  accom- 


438  the  ohio  municipal  code.  [Code  §189 

panied  with  the  permit  of  the  board  of  health  provided  for 
herein,  and  no  common  carrier,  its  agent,  conductor  or  other 
employe  shall  receive  for  conveyance,  or  convey  the  remains 
of  a  deceased  person  without  having  first  complied  with  such 
regulations  as  shall  be  made  by  the  state  board  of  health.  [95 
v.  434;  Bates  K.  S.  §  2116  (latter  part),  and  §  2119.] 

(1)    See  note  (1)  to  §  187  of  the  Code,  page  418. 

FORM  OF  BURIAL  PERMIT. 

City  [or  village]  of 

Office  of  the  Board  of  Health. 

19.... 

Permission  is  hereby   given  to  bury  in cemetery 

[or  cremate  or  remove  out  of  the  state]  the  remains  of , 

who  died 19.  .  . .,  at ,  aged , 


By  order  of  the  Board  of  Health. 

Clerk. 

Sec.  2142 U.S.  [Scavengers;  employment  of.]  The  council 
may  grant  power  to  the  board  of  health  to  employ  such  num- 
ber of  scavengers  for  the  removal  of  swill,  garbage  and  offal 
from  the  houses,  buildings,  yards,  and  lots  within  the  city  or 
village  as  it  may  deem  necessary;  and  the  board  in  such  cases 
may  make  the  contracts  [therefor]  thereof,  subject  to  the 
approval  of  the  council,  and  to  be  signed  by  the  proper  officers  of 
the  council,  and  may  regulate  the  work  to  be  done,  and  it  shall 
be  the  duty  of  council,  upon  the  request  of  the  board  of  health, 
to  lease  or  purchase  suitable  land  or  lands,  the  location  of 
which  shall  be  approved  by  the  board  of  health,  to  be  used 
as  a  dump  ground  for  garbage,  swill,  offal,  night  soil  and 
other  noxious  substances  to  be  removed  from  such  city  or 
village.      [95  v.  435.] 

Sec.  2143  R.  S.  [Definition  of  sanitary  plant ;  plans  and  esti- 
mates; condemnation  of  lands  for  sanitary  plant.]  The  expres- 
sion "  sanitary  plant "  as  herein  used,  shall  be  held  to  mean 
a  structure  with  the  necessary  land  and  all  the  necessary  fixtures 
and  appliances  and  appurtenances  required  for  the  treatment 
and  purification  and  disposal,  in  a  sanitary  manner,  of  either  or 
both  the  Jiquid  or  solid  wastes  of  the  municipality.  Upon 
the  recommendation  of  the  board  of  health  of  any  city,  village, 
or  hamlet,  or  if  in  any  municipality,  the  powers  usually  vested 


Code  §189]  cities,  board  of  health.  .  439 

in  a  board  of  health,  have  been  vested  in  any  other  officer  or 
board,  then  upon  the  recommendation  of  such  officer  or  board, 
the  city  council,  legislative  body  or  other  governing  board,  of 
any  municipality,  is  hereby  authorized  to  cause  plans  and 
estimates  to  be  prepared  and  to  acquire  by  condemnation  or 
otherwise  such  land  or  lands  within  or  without  corporate  limits, 
as  may  be  necessary  to  provide  for  the  proper  disposal,  in  a 
sanitary  manner,  of  the  sewage  and  the  garbage  and  waste 
matters,  or  either  or  any  of  them  of  the  municipality,  and 
such  council,  legislative  body  or  other  governing  board  of  the 
municipality,  is  hereby  authorized,  upon  first  obtaining  the 
approval  of  the  state  board  of  health,  to  contract  for,  erect  and 
maintain  a  sanitary  plant  or  plants,  on  the  land  or  lands  ac- 
quired under  the  provisions  of  this  act,  together  with  all  build- 
ings, machinery,  appliances  and  appurtenances,  necessary  for 
the  disposal,  in  a  sanitary  and  economic  manner,  of  the  sew- 
age and  garbage,  night  soil,  dead  animals,  offal,  spoiled  meats, 
and  fish  or  any  putrid  substance,  or  any  liquid  or  solid  wastes, 
or  any  substance  injurious  to  health  of  the  municipality.  [95 
v.  435;  Bates  E.   S.  §  2142a.] 

Sec.  2144.  It.  S.  [Collection,  removal  and  disposal  of  garbage, 
night  soil,  etc.]  The  said  council,  legislative  body  or  other 
governing  board,  is  hereby  authorized  to  contract,  for  a  period 
not  exceeding  five  years  for  the  collection  and  removal  of  such 
garbage,  night  soil,  dead  animals  and  other  solid  waste  sub- 
stances, at  the  expense  of  such  municipal  corporation,  or  at 
the  expense  of  persons  responsible  for  the  existence  of  such 
waste  substance.      [95  v.  436 ;  Bates  K.  S.  §  21426.] 

Sec.  2145  It.  S.  [How  funds  raised  for  such  purpose.]  For  the 
purpose  of  carrying  into  effect  the  foregoing  powers,  the  coun- 
cils of  cities,  legislative  bodies  or  governing  boards  of  any 
municipal  corporation  or  township  may  use  any  funds  raised, 
or  heretofore  authorized  in  any  manner  and  necessary  for  said 
purposes,  and  in  case  no  funds  are  available  and  no  bonds  have 
been  hertofore  authorized  for  said  purposes,  and  it  be  necessary 
to  issue  and  sell  bonds  for  said  .  purposes,  then  the  question 
of  issuing  any  bonds  of  the  municipality  shall  be  submitted 
at  an  election  conducted  therefor  in  conformity  with  provi- 
sions of  section  2836,1  except  that  a  majority  of  the  votes 
cast  shall  be  deemed  sufficient  to  authorize  the  municipal  cor- 
poration to  issue  said  bonds  under  this  act,  and  the  council  or 
other  legislative  body  shall  not  have  authority  to  issue  the  said 
bonds  unless  a  majority  of  the  qualified  electors  of  such  munici- 


440  the  ohio  municipal  codb.  [Code  §189 

pality  voting  shall  be  in  favor  of  the  proposition  to  issue  said 
bonds  for  said  purposes.      [95  v.  436 ;  Bates  K.  S.  §  2142c] 

( 1 )  This  section,  as  amended  and  Act,  may  be  found  under  §  100  of 
made  part  of  the  Longworth  Bond      the  Code,  page  287. 

Sec.  2146  R.  S.  [Appointment  of  sanitary  board.]  Before  sub- 
mitting said  proposition  to  a  vote  of  the  people,  the  city  council, 
or  other  legislative  body  of  said  municipal  corporation  may  by 
resolution,  determine  to  have  all  the  work  in  connection  with  the 
erection  and  maintenance  of  said  sanitary  plant  and  the  acqui- 
sition of  the  necessary  real  estate  therefor,  put  under  the  con- 
trol of  a  sanitary  board,  which  shall  be  appointed  before  the 
vote  is  taken. 

[Constitution  of  board;  how  appointed;  term.]  Said  board 
shall  consist  of  two  citizens  from  each  of  the  two  political  par- 
ties casting  the  highest,  vote  at  the  last  preceding  municipal 
election,  who  shall  be  appointed  by  the  mayor  by  and  with  the 
consent  and  approval  of  the  city  council,  or  ofher  legislative 
body  of  said  municipal  corporation,  and  shall  serve  for  a  term 
of  two  years  and  until  their  successors  are  duly  appointed. 

[Compensation  and  powers  of  board.]  Said  board  shall  have 
such  reasonable  compensation  as  the  city  council  or  other  legis- 
lative body  of  said  municipal  corporation  may  prescribe,  and 
shall  have  entire  control  of  the  erection  and  maintenance  of  said 
sanitary  plant  and  the  purchase  of  the  necessary  real  estate 
therefor  on  behalf  of  said  municipal  corporation  and  may, 
in  its  discretion,  modify  said  original  plans  and  specifications, 
subject,  however,  to  the  approval  of  the  state  board  of  health, 
and  provided,  that  the  total  cost  thereof  shall  not  exceed  the 
original  estimate.      [95  v.  436 ;  Bates  K.  S.  §  2142d.] 

Sec.  2147  R.  S.  [Levy  for  sanitary  fund.]  For  the  purpose 
of  providing  a  fund  for  the  payment  of  the  principal  and  inter- 
est of  the  bonds  issued  under  this  act,  and  of  maintaining  said 
sanitary  plant  or  plants,  said  city  council  or  other  legislative 
body  shall,  in  addition  to  the  other  levies  authorized  by  law, 
levy  annually  a  sufficient  tax  therefor  on  all  the  property  sub- 
ject to  taxation  in  said  municipal  corporation  and  such  taxes 
shall  be  levied  and  collected  in  the  same  manner  as  other 
taxes ;  and  the  proceeds  thereof  shall  constitute  the  "  sanitary 
fund  "  of  said  municipal  corporation,  and  shall  be  held  like 
other  funds  of  said  municipal  corporation  subject  only  to  the 
written  order  of  said  city  council  or  other  legislative  body,  or 
governing   or   sanitary   board   of  said   municipal   corporation 


Code  §190]  cities,  judicial.  441 

which  shall  have  control  of  said  work.      [95  v.  437 ;  Bates  E. 
S.  §  2148*] 

Sec.  2148  R.  S.  [Sanitary  report;  its  contents,  etc.]  It  shall  be 
the  duty  of  the  board  of  health,  or  health  department,  on  or  be- 
fore the  fifteenth  day  of  January  of  each  year  to  make  a  report, 
in  writing,  to  the  council  of  the  corporation,  and  to  the  state 
board  of  health,  which  shall  be  for  the  preceding  calendar  year, 
upon  the  sanitary  condition  and  prospects  of  such  city  or  village, 
which  report  shall  contain  the  statistics  of  deaths,  the  action  of 
the  board  and  its  officers  and  agents,  and  the  names  thereof  for 
the  past  year;  and  it  may  contain  other  useful  information, 
and  the  board  shall  suggest  therein  any  further  legislative 
action  deemed  proper  for  the  better  protection  of  life  and 
health;  and  it  shall  be  the  duty  of  said  boards  of  health 
and  health  departments  to  promptly  furnish  such  special  re- 
ports as  may  be  called  for  by  the  state  board  of  health.  [95  v. 
437;  Bates  K.  S.  §  2136.] 


3.     JUDICIAL.1 

Sec.  190.  [Police  court.]  In  every  city  where  a  police  court 
is  now  established  by  law,  whether  by  general  acts  or  by  acts 
designating  the  city  by  grade  or  class  or  otherwise,2  said  police 
court  shall  continue  to  exercise  all  powers  and  functions  con- 
ferred by  said  general  or  special  acts,  and  shall  be  known  as  the 
police  court  of  the  city  in  which  the  same  now  exists. 


(1)    Constitutional      provisions  therein;    but  no  such  change,  addi- 

governing  the   legislature  in  estab-  tion,    or    diminution,    shall    vacate 

lishing    inferior    courts    and    fixing  the  office  of  any  judge."     Art.  4,   § 

their  jurisdiction.     Art.  4,   §   15  of  18     provides     that     "  the      several 

the    Const,    of    Ohio    provides    that  judges  of  the  Supreme  Court,  of  the 

"the  General  Assembly  may  increase,  Common   Pleas,   and   of  such    other 

or    diminish,    the    number    of    the  courts    as    may    be    created,    shall, 

judges   of   the   Supreme   Court,   the  respectively,      have      and      exercise 

number  of  the  districts  of  the  Court  such     power    and     jurisdiction,     at 

of   Common    Pleas,    the   number    of  chambers,  or  otherwise,  as  may  be 

judges  in  any  district,   change   the  directed  by  law." 

districts,  or  the  sub-divisions  there-  The    municipal    Code    passed    Oc- 

of,  or  establish  other  courts,  when-  tober  22,   1902,  did  not  receive  the 

ever    two-thirds     of    the     members  votes  of  two-thirds  of  the  members 

elected  to  each  house  shall   concur  elected   to  each   house   of  the  Gen- 


442 


THE    OHIO    MUNICIPAL    CODE.        [Code  §§191,  192 


eral  Assembly.  The  enactment  of  a 
uniform  municipal  police  court  law 
would  have  required  such  a  vote. 
Steamboat  Northern  Indiana  v. 
Milliken,  7  O.  S.  383;  State  v. 
Voris,  8  N.  P.,  16. 

The  judicial  sections  of  the 
Code,  with  respect  both  to  city  and 
village  police  courts,  must  there- 
fore be  considered  merely  as  declara- 
tory of  the  intent  of  the  legisla- 
ture to  leave  in  force  the  various 
systems  of  municipal  courts  as  pre- 
viously established  by  general  or 
special  laws.  It  will  be  observed, 
however,  that  several  sections  of  the 
Revised  Statutes  relating  to  police 
judges  and  the  jurisdiction  of  po- 
lice courts  are  included  in  the  list 
of  repeals  in  §  231  of  the  Code. 
A  two-thirds  vote  of  the  legisla- 
ture is  not  required  to  abolish  courts 
established  by  statute  or  to  limit  or 
restrict  their  jurisdiction.  State 
eu  rel.  v.  Wright,  7  O.  S.  333; 
State  v.  Kinninger,  46  O.  S.  570, 
574;    State   v.   Voris,    8   N.   P.    16; 

Sec.  191.  [Jurisdiction  thereof;  how  judges,  clerks,  etc.,  cho- 
sen.] The  police  court  of  each  city  as  heretofore  established  and 
now  existing  shall  have  the  jurisdiction  conferred  in  any 
general  or  special  act  creating  or  governing  the  same,  and  the 
judge  or  judges  and  clerk,  assistant  clerks,  and  all  other  officers 
and  employes  of  said  court,  except  the  prosecuting  attorney,1 
shall  be  elected  2  or  appointed  and  shall  continue  to  exercise 
their  powers  and  duties  in  the  manner  provided  in  said  existing 
laws. 


Backenstoe  v.  State,  2  N.  P.  (N.  S.) 
178. 

Statutes  relating  to  Police 
Courts,  referred  in  §§  190,  191 
and  192  of  the  Code,  and  still  in 
force,  will  be  found  under  the  title 
Judicial  in  Part  II. 

(2)  Validity  of  special  acts. — 
The  Supreme  Court  has  upheld  spe- 
cial acts  establishing  local  courts, 
declaring  that  §  1  of  Art.  4  of  the 
Constitution  of  Ohio  vests  in  the 
legislature  full  power  to  determine 
what  other  courts  it  will  establish, 
local,  if  deemed  proper,  either  for 
separate  counties  or  districts,  and 
to  define  their  jurisdiction;  and 
holding  that  the  power  thus  con- 
ferred is  not  limited  by  §  26  of 
Art.  2  of  the  Constitution,  which 
ordains  that  all  laws  of  a  gen- 
eral nature  shall  have  uniform  op- 
eration throughout  the  state.  State 
ex  rel.  v.  Bloch,  65  O.  S.  370.  See 
also  Meyer  v.  Dempsey,  62  O.  S. 
637;  State  v.  Archibald,  52  O.  S.  1. 


(1)  City  solicitor  as  prosecut- 
ing attorney  of  the  police  court, 
»ee  §  137  of  the  Code. 

(2)  Election    of    police    judge 

and   clerk,   where  not  provided  for 


in  special  acts,  see  §  230  of  the 
Code.  The  judge  must  be  elected, 
and  clerk  also  if  court  is  a 
court  of  record.  Constitution  of 
Ohio,  Art.  IV.,  §§  10  and  16. 


Sec.  192.     [Certain  acts  not  repealed.]     All  acts  or  parts  of 
acts  providing  for  such  police  courts,  or  regulating  the  proced- 


Code  §192]  cities,   judicial.  443 

ure  therein,  including  an  act  entitled  "An  act  to  amend  section 
6565  of  the  Kevised  Statutes  of  Ohio/'  passed  April  10th, 
1902,     shall  be  and  remain  in  full  force  and  effect1 

(1)     For   acts   relating  to  police  code,  whether  they  would  neverthe- 

courts,    see   title   Judicial   in   Part  less    remain   in   force   by   virtue   of 

II.  sections  190,  191  and  192,  see  Lem- 

Where  acts  expressly  repealed.  bo  v.   State,   14  Dec.  384;   Howard 

—  Where    acts    relating    to    police  v.  State,  14  Dec.  483 ;  Bachenstoe  v. 

courts  are  expressly  repealed  by  the  State,  2  N.  P.   (N.  S.)   178. 


444  the  ohio  municipal  code.      [Code  §§193, 194 


IV 

ORGANIZATION  OF  VILLAGES. 

1.  LEGISLATIVE. 
Seo.  193.  [Council;  number  of  members,  election,  term,  etc.]1 
The  legislative  power  of  every  village  shall  be  vested  in,  and 
exercised  by,  a  council,  composed  of  six  members,  who  shall  be 
elected  by  the  electors  of  the  village,  at  large,  for  terms  of  two 
years  and  shall  serve  until  their  successors  are  elected  and 
qualified.  At  the  first  municipal  election  after  the  taking 
effect  of  this  act,  three  councilmen  shall  be  elected  for  two  years, 
and  three  councilmen  for  one  year;  and  each  year  thereafter 
three  councilmen  shall  be  elected  for  a  term  of  two  years,  and 
shall  serve  until  their  successors  are  elected  and  qualified.2 

(1)   Old    section. —  Compare  old  (2)   See  note   3  under   §   116   of 

{  1672  R.  S.,  repealed.  the  Code,  p.  304. 

Sec.  194.  [Council  shall  fix  bonds  and  compensation  of  all  offi- 
cers to  be  elected  or  appointed.]  Not  later  than  the  first  day  of 
January  next  after  the  passage  of  this  act,  the  present  council 
in  each  municipal  corporation  classified  as  a  village  in  this  act, 
shall  iix  the  compensation  and  bonds  of  all  officers  to  be  elected 
at  the  first  election  held  under  the  authority  of  this  act,  as  well 
as  the  compensation  and  bonds  of  all  officers  to  be  first  appointed 
hereunder ; 1  provided  that  no  compensation  shall  be  allowed 
to  members  of  council ;  *  and  provided,  further,  that  the  com- 
pensation so  fixed  shall  not  be  increased  or  diminished  during 
the  term  for  which  any  such  officer  may  be  elected  or  appointed.3 

(1)  See  notes  under  §117  of  the  is  inconsistent  with  section  197  aa 
Code.  amended.    See    note   4    under    §  197 

(2)  Compensation  of  council-       infra. 

men. — This  section  is  repealed  by  (3)  See  note  (4)  to  §  126  of  Code, 

act  of  April  20,  1904,  so  far  as  it       p.  326. 


Code  §§  195-197]        villages.  cotj^cil.  445 

Sec.  195.     [President  pro  tem;  village  employes.]   The  council 

shall,  at  the  first  meeting  in  the  month  of  May  of  each  year, 

immediately  proceed  to  elect  a  president  pro  tem.  from  their 

own  number,  and  from  time  to  time  provide  such  employes 

for  the  village  as  they  may  determine.1     The  president  pro  tem. 

of  council  shall  serve  for  a  period  of  one  year,  but  the  employes 

can  be  removed  at  any  regular  meeting  by  a  majority  of  the 

members  elected  to  council.2 

(1)    Exception.— See    note     (2)  (2)   Compare  §  118  of  the  Code, 

under  §  197  of  the  Code,  infra.  and  see  notes  thereunder. 

Sec.  196.  [Powers  of  council.]  Councils  of  villages  shall  be 
governed  by  the  provisions,  so  far  as  applicable,  of  sections  119, 
120,  121,  122,  124  and  125  of  this  act.1 

[Mayor  shall  have  no  veto  power.]  Provided,  however,  that 
the  provisions  of  section  125  of  this  act,  so  far  as  said  provisions 
relate  to  the  veto  power  of  the  mayor,  shall  not  be  applicable 
to  villages;  and  wherever  in  said  sections  the  word  "  city  "  ap- 
pears, the  word  "  village  "  shall  be  substituted  for  this  purpose. 

( 1 )   These  sections  provide  for  the  government  of  councils  in  cities. 

Sec.  197.  [Compensation  and  bonds  of  officers,  clerks  and  em- 
ployes.] Council  shall  fix  the  compensation  and  bonds  of  all 
officers,  clerks  and  employes  in  the  village  government,1  except 
as  otherwise  provided  in  this  act.2  All  bonds  shall  be  made 
with  sureties  subject  to  the  approval  of  the  mayor.  The  com- 
pensation so  fixed  shall  not  be  increased  or  diminished  during 
the  term  for  which  any  officer,  clerk  or  employe  may  have  been 
elected  or  appointed ; 8  provided  that  members  of  council  may 
receive  as  compensation  the  sum  of  two  dollars  for  each  meet- 
ing, not  to  exceed  twenty-four  meetings  in  any  one  year,4  and 
they  shall  have  such  other  powers  as  are  conferred  upon  coun- 
cils of  villages  by  section  1678  of  the  Revised  Statutes  of  Ohio. 
[1904,  April  20,  97  v.  118.] 

( 1 )  Form  of  ordinance  fixing  ficers  and  employes,  see  that  given 
compensation     and     bonds     of     of-      under  §227  of  the  Code. 


446  the  ohio  municipal  code.     [Code  §§198, 199 

Compensation.  —  See  generally  men.— The  act  of  April  20,  1904, 
notes  to  §  227  of  the  Code.  .  amending    §    197    contains    the    fol- 

(2)  Exceptions.— See  §§  189,  lowing  language,  in  the  repealing 
217  and  218  of  the  Code,  §  2115  section  .  .  .  "section  ^4  of  an 
R.  S.  re-enacted  in  §  189  of  the  act  entitled,  An  act  [etc.,  the 
Code,  and  §  2409  R.  S.,  re-enacted  Municipal  Code]  passed  October 
in  §  205  of  the  Code.  22nd,  1902,  so  far  as  its  provisions 

(3)   See  note  (5)   to  §  126  of  the  are  inconsistent  with  the  provisions 

Code,  page  326.  of  this  act,  is  hereby  repealed." 

(4)  Compensation  of  council- 
Sec.  1678  R.  S.  [Prerogative.]  The  council  shall  have  the 
management  and  control  of  the  finances  and  property  of  the 
corporation,  except  as  may  be  otherwise  provided,  and  have 
such  other  powers  and  perform  such  other  duties  as  may  be 
conferred  by  law.1      [66  v.  163,  §  84.]  I 


(1)   Powers   strictly   limited. — 

See  note    (6)    to   §   7   of  the  Code, 
page  44. 

Sec.  198.  [Contracts;  how  made.]  All  contracts  made  by 
the  council  of  any  village  shall  be  executed  in  the  name  of  the 
village  and  signed  on  behalf  of  the  village  by  the  mayor  and 
clerk,  and  shall  be  made  subject  to  the  provisions  of  sections 
143  and  144  of  this  act,  so  far  as  the  same  are  applicable. ' 

( 1 )   Making  of  contracts. —  The  Forms  of  advertisement,  bids, 

sections  above  referred  to  are  those       etc.,  see  those  given  under  §  143  of 
which    govern    the   making   of   con-       the  Code,  page  376. 
tracts  by  the  board  of  public  service 
in  cities. 

2.  EXECUTIVE. 
(a)  chief  officers. 
Sec.  199.  [Executive  power  vested  in  whom.]1  The  execu- 
tive power  and  authority  of  villages  shall  be  vested  in  a  mayor, 
clerk,  treasurer,  marshal,  street  commissioner,  and  such  other 
officers  and  departments  as  are  created  by  this  act.2  Provided, 
however,  that  the  village  council  may,  when  it  deems  it  neces- 
sary, provide  legal  counsel  for  the  village,  or  any  department 
or  official  thereof,  for  a  period  not  exceeding  two  years,  end 
provide  compensation  for  the  same.3 


Code  §199] 


VILLAGES.    EXECUTIVE. 


447 


(1)  Old  section  1706  R.  S.,  re- 
pealed. 

( 2 )  Officers. —  Questions  relating 
to  powers,  liabilities,  etc.,  of  mu- 
nicipal officers,  see  notes  under  $ 
128  of  the  Code,  page  328. 

Board  of  health  or  health 
officer. —  Sec.  187  of  the  Code  re- 
quires village  councils  to  establish 
a  board  of  health  or  appoint  a 
health  officer.  For  form  of  ordi- 
nance establishing  board  of  health, 
see  that  given  under  §  187,  page  419. 

Trustees  of  public  affairs. — 
Sec.  205  of  the  Code  requires  vil- 
lage councils  to  establish  a  board  of 
trustees  of  public  affairs  in  all  vil- 
lages owning,  leasing  or  construct- 
ing water-works,  electric  light 
plants,  artificial  or  natural  gas 
plants  or  similar  public  utilities. 
For  form  of  ordinance  establishing 


such  board  see  that  given  under  § 
205,   page  458. 

(3)    Village    solicitor     may    be 

employed  for  a  period  not  exceed- 
ing two  years,  either  by  a  direct  res- 
olution of  council  designating  the 
name  of  the  attorney  chosen  and  the 
terms  of  his  employment;  or  by  or- 
dinance for  the  selection  by  it  of  a 
solicitor  at  stated  periods  of  not 
exceeding  two  years;  or  by  resolu- 
tion directly  employing  an  attorney 
for  any  department  or  officer  of  the 
corporation,  for  some  specific  legal 
work,  or  for  a  specially  designated 
period  not  exceeding  two  years. 
Certificate  that  money  is  in  the 
treasury  is  not  required  before  con- 
tract can  be  made  for  employment 
of  legal  counsel.  See  §  45  of  the 
Code,   page   173. 


FORM  OF  ORDINANCE  PROVIDING  FOR  VILLAGE  SOLICITOR. 


Ordinance  No. 


Providing  for  the  employment  of  a  Village  Solicitor. 


Be  it  ordained  by  the  council  of  the  village  of . . , 

State  of  Ohio: 

Sec.  1.  That  legal  counsel  shall  be  provided  for  this  village,  and  the 
person  employed  as  such  counsel  shall  be  known  as  the  "  Solicitor  of  the 

Village   of "     Such    solicitor    shall    be    employed    by 

council  at  its  first  meeting  after  the  passage  of  this  ordinance;  and  there- 
after at  the  first  meeting  of  council  in  May  annually,  a  person  shall  be 
employed  as  such  solicitor  for  the  ensuing  year. 

Sec.  2.     The  salary  of  the  solicitor  shall  be dollars  during 

the  period  of  his  service,  payable 

Sec.  3.  The  solicitor  shall  be  an  attorney-at-law,  admitted  to  practice 
in  the  courts  of  Ohio.  It  shall  be  the  duty  of  said  solicitor  to  act  as 
attorney  and  counsel  for  the  village  and  the  officers  thereof  in  their  offi- 
cial capacity,  and,  as  such  attorney,  to  prosecute  and  defend  all  actions 
by  or  against  the  village  or  any  department  or  officer  thereof  during  the 
term  of  his  employment;  and  to  render  legal  opinions  to  the  council  and 
to  any  department  or  officer  of  the  village  upon  request  in  writing. 


448  the  ohio  municipal   code.  [Code  §200 

Sec.  4.     This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 


19 

President. 
Attest: 

Clerk. 

Mayor. 

Sec.  200.  [Mayor:  election,  term,  qualifications,  powers  and 
duties.]1  The  mayor  shall  be  elected  for  a  term  of  two  years, 
and  shall  serve  until  his  successor  is  elected  and  qualified.2 
He  shall  be  an  elector  of  the  corporation.  He  shall  be  the  chief 
conservator  of  the  peace  within  the  corporation,3  and  shall  have 
such  other  powers  and  perform  such  other  duties  as  are  con- 
ferred and  required  in  sections  1746,  1747,  1748,  1750  and 
1751,  of  the  Revised  Statutes  of  Ohio;  such  as  are  provided 
in  this  act,  and  all  other  acts  or  parts  of  acts  applying  to  all 
villages  of  the  state,  and  not  inconsistent  herewith,4  provided, 
that  the  mayor  shall  pay  over  to  the  treasurer  of  the  village, 
monthly,5  all  fines,  license  fees,  or  other  moneys  of  whatever 
character  which  may  be  collected  by  him,  and  shall  receive  such 
fees  as  are  provided  for  by  section  1843  of  the  Revised  Statutes 
of  Ohio.  The  mayor  shall  be  the  president  of  council  and 
shall  preside  at  all  regular  and  special  meetings  thereof,  but 
shall  have  no  vote  except  in  case  of  a  tie. 

[Vacancy  in  office  of  mayor;  how  filled.]  When  the  mayor  is 
absent  from  the  village,  or  is  unable  for  any  cause  to  perform 
his  duties,  the  president  pro  tern,  of  council  shall  be  acting 
mayor.6  In  case  of  the  death,  resignation  T  or  removal  of  the 
mayor,  the  president  pro  tern,  of  council  shall  become  the  mayor 
and  serve  for  the  unexpired  term,  and  until  the  successor  is 
elected  and  qualified,  and  the  vacancy  thus  created  in  council 
shall  be  filled  as  other  vacancies  8  therein,  and  council  shall 


Code  §   200]  VILLAGES.       MAYOR.  449 

elect  another  president  pro  tern,  from  their  own  number,  who 
shall  have  the  same  rights,  powers  and  duties  as  his  predecessor. 
[Mayor's  compensation.]  The  mayor  in  addition  to  the  fees 
provided  for  in  section  1843  of  the  Kevised  Statutes  of  Ohio, 
shall  receive  such  salary,  payable  quarterly  out  of  the  corpora- 
tion treasury,  as  may  be  provided  by  ordinance,9  but  the  amount 
shall  not  be  increased  or  diminished  during  his  term  of  office. 

(1)  Old  sections. —  Compare  §  absence  of  mayor  do  not  include 
1744  R.  S.  under  Officers  in  Part  judicial  functions  exercised  by 
II.,  and  §§  1753,  1754  R.  S.  (re-  mayor.  State  v.  Hance,  26  C.  C. 
pealed).  273,    . 

(2)  See  note  to  §  116  of  the  (7)  When  resignation  takes 
Code,  page  303.  effect. —  Acceptance    by    council    is 

(3)  See  note  (2)  under  §  129  of  not  necessary  before  mayor's  resig- 
the  Code,  page  330.  nation    can   take    effect.      Reiter   v. 

(4)  Other   statutes   relating   to      State,  51  O.  S.  74. 

powers  and  duties  of  mayor,  not  (8)  Vacancies  in  village  coun- 
re-enacted  and  not  repealed  by  the  cil  are  filled  by  election  by  council 
Code  may  be  found  under  Officers  for  unexpired  term,  and  upon  fail- 
in  Part  II.  ure  of  council  to  act  within  thirty 

(5)  Compare  §  1751  R.  S.,  re-  days,  then  by  appointment  by  may- 
enacted,  which  requires  the  mayor  or.  See  §  120  of  the  Code,  made 
to  pay  over  such  moneys  weekly.  applicable  to  villages  by  §196,  su- 
The  requirement  of  monthly  settle-  pra. 

ments    expressly    made    above,    un-  (9)   Form    of    ordinance   fixing 

doubtedly    governs.     State    ex    rel.  salary  and  bond  of  mayor  and  other 

v.  Hamilton,  47  O.  S.  52;  State  ex  municipal  officers  and  employes,  see 

rel.  v.  Bailey,  37  O.  S.  98,  103.  that  given  under  §  227  of  the  Code, 

(6)  Acting  mayor's  powers,  in  infra. 
villages,  which  he  may  exercise  in 

Sec.  1746  R.  S.  [Further  duties.]1  He  shall  perform  all  the 
duties  prescribed  by  the  by-laws  and  ordinances  of  the  corpora- 
tion ;  and  it  shall  be  his  special  duty  to  see  that  all  ordinances, 
by-laws,  and  resolutions  of  the  council  are  faithfully  obeyed  and 
enforced;  and  he  shall  sign  all  commissions,  licenses,  and  per- 
mits granted  by  authority  of  the  council,  or  authorized  by  this 
title,  and  such  other  instruments  as  by  law  or  ordinance  may 
require  his  certificate.  [66  v.  169,  §  116;  (S.  &  C.  1510, 
1511).] 

(2)  This  section  is  also  re-enact- 
ed in  §  129  of  the  Code,  applying 
to  cities.     See  notes  to  it  there. 

Sec.  1747  R.  S.  [Supervision  of  conduct  of  officers.]1  He  shall 
supervise  the  conduct  of  all  the  officers  of  the  corporation,  in- 


450  the  ohio  municipal  code,  [Code  §200 

quire  into  and  examine  the  grounds  of  all  reasonable  complaints 
against  any  of  them,  and  cause  all  their  violations  or  neglect  of 
duty  to  be  promptly  punished  or  reported  to  the  proper  au- 
thority for  correction.      [66  v.  169 ;  §  119.] 

(I)  This  section  is  also  re-enact- 
sd  in  §  129  oi  the  Code,  applying 
to  cities. 

Sec.  1748  R.  S.  [Mayor  to  record  his  protest  against  excess  of 
expenditure.]1  If,  in  the  opinion  of  the  mayor,  an  expenditure 
is  authorized  by  the  council  exceeding  the  revenues  of  the  cor- 
poration for  the  current  year,  it  shall  be  his  duty  to  protest 
against  such  expenditure,  and  enter  such  protest,  and  the  reason 
therefor,  on  the  journal  of  the  council.      [66  v.  261,  §  657.] 

(1)  This  section  is  also  re-enact- 
ed in  §  129  of  the  Code,  applying 
to  cities. 

Sec.  1750  R.  S.  [Annual  report  to  council.]  He  shall,  at  the 
first  regular  meeting  of  the  council  in  April  of  each  year,  and  at 
such  other  times  as  he  may  deem  expedient,  report  to  the  coun- 
cil concerning  the  affairs  of  the  corporation,  and  recommend 
such  measures  as  to  him  may  seem  proper.      [QQ  v.  179,  §  122.] 

Sec.  1751  R.  S.  [Disposition  of  fines,  etc.]  All  fines  and  for- 
feitures which  may  be  collected  by  the  mayor,  or  which  may  in 
any  manner  come  into  his  hands,  and  all  moneys  which  may  be 
received  by  him  in  his  official  capacity,  other  than  his  fees  of 
office,  shall  be  by  him  paid  over  to  the  treasury  of  the  corpora- 
tion weekly,1  and  at  the  first  regular  meeting  of  the  council  in 
each  and  every  month,  he  shall  submit  a  full  statement  of  all 
such  moneys  received,  from  whom  and  for  what  purpose  re- 
ceived, and  when  paid  over;  but  all  fines,  penalties,  and  forfei- 
tures collected  by  him  in  state  cases  shall  be  by  him  paid 
over  to  the  county  treasurer  monthly.2      [QQ  v.  170,  §  123.] 

( 1 )  Compare  §  200  of  the  set  off  uncollected  costs  on  the  may- 
Code,  which  requires  that  such  or's  docket.  Deatrick  v.  Defiance,  1 
moneys  shall  be  paid  over  month-  C.  C.  340.  The  fact  that  council 
ly,  and  see  note  (5)  to  said  sec-  made  a  settlement  with  the  mayor 
tion.                                      •  allowing  such  set  off,   will  not  bar 

Set      off. —  Mayor      cannot,      in  action  for  full  amount  of  fines,  etc. 

an  action  by  city  against  him  to  re-  lb. 
cover   fines,   etc.,   collected  by  him,  (2)   In     prosecutions     in      the 


Code  §  201]  VILLAGES.        CLERK.  451 

name  of  the  state,  fines  and  costs  Mayor's  fees. — This  section  has 

received   from   persons   convicted   of  been   held  to  apply  only  to  village 

misdemeanors   under   statutes   must  mayors,  and  not  to  mayors  in  cities, 

be  paid  into  the  county  treasury  and  Cambridge  v.   Smallwood,   27   C.  C. 

where  paid  into  the  municipal  treas-  302;    6    C.   C.    (N.   S.)    230;    Belle- 

ury,  the  municipality  is  liable  there-  fontaine  v.  Haviland,  15  N.  P.  482 ; 

for    to    the    county.     Cleveland    v.  3  N.  P.   (N.  S.)    99. 
Jewett,  39  O.  S.  271. 

Sec.  1843  R.  S.  [Fees  of  officers.]  The  costs  of  the  mayor 
and  other  officers,  in  all  cases,  shall  be  fixed  by  ordinance,  but 
in  no  case  greater  than  the  fees  for  similar  services  before  jus- 
tices of  the  peace ;  and  in  case  of  conviction  the  fees  of  officers, 
jurors,  and  witnesses  shall  be  taxed  against  the  parties  con- 
victed; and  in  case  of  acquittal  of  the  violation  of  an  ordi- 
nance, the  costs,  except  the  fees  of  the  mayor  and  marshal, 
shall  be  taxed  against  the  corporation.1     [66  v.  180,  §  197.] 

(1)   Where  persons  convicted  Jones  v.   Commissioners   and  Lewis 

work   out   their   fines   and   costs,  v.  State,  57  0.  S.  189. 

the  mayor  is  not  entitled  to  collect  Necessity    of    ordinance. — Un- 

his     fees     from     the     municipality.  til  an  ordinance  is  passed  fixing  the 

Gibson  v.  Zanesville,  31  O.  S.  184.  fees,   the   mayor   is   not   entitled   to 

Limitation   of  fees. — An  officer  charge.     Bellefontaine  v.   Haviland, 

whose  compensation  is  paid  in  fees  15  N.  P.  482;  3  N.  P.   (N.  S.)  99. 

is  authorized  to  charge  fees  in  those  Other     statutes     on     mayor's 

cases    only   which    are   provided    by  court    will    be    found    under    title 

statute.     State   v.  Lewis,   22   C.   C.  Judicial  in  Part  II. 
618;  affirmed  by  Supreme  Court,  see 


Clerk. 

Sec.  201.  [Clerk:  election,  term  and  qualifications ;  powers  and 
duties;  seal.]1  The  clerk  shall  be  elected  for  a  term  of  two  years 
and  shall  serve  until  his  successor  is  elected  and  qualified.  He 
shall  be  an  elector  of  the  corporation. 

The  clerk  shall  attend  all  meetings  of  council  and  keep  a 
record  of  its  proceedings,2  and  of  all  rules,  by-laws,  resolutions 
and  ordinances  passed  or  adopted,  and  the  same  shall  be  subject 
to  the  inspection  of  all  persons  interested;  and  in  case  of  the 
absence  of  the  clerk,  council  shall  appoint  one  of  its  own  mem- 
bers to  perform  his  duties  for  the  time. 

The  clerk  shall  perform  all  the  duties  of  an  auditor  required 
in  sections  133  and  134  of  this  act,  and  whenever  the  words, 
"  city  "  or  "  auditor  "  appear  in  said  sections,  the  words,  "  vil- 
lage "  or  "  clerk  "  shall  be  substituted  for  this  purpose.  The 
clerk  shall  also  have  the  powers  and  perform  the  duties  con- 


452  the  ohio  municipal   code.  [Code  §201 

ferred  and  required  in  sections  1756,  1757,  1758,  1759,  1761, 
1762,  and  1763,  of  the  Revised  Statutes  of  Ohio,  and  such  other 
powers  and  duties  as  may  now  or  hereafter  be  conferred  or  re- 
quired by  ordinance  or  by  any  law  applying  to  all  villages  of  the 
state. 

Council  shall  provide  a  seal  for  the  clerk,  in  the  center  of 
which  shall  be  the  name  of  the  village,  and  around  the  margin 
the  words,  "  village  clerk,"  an  impression  of  which  seal  shall 
be  affixed  to  all  transcripts,  orders,  certificates  or  other  papers 
requiring  authentication.3 

(1)  Old  sections. —  Compare  old  (3)  Seal  of  clerk  is  not  the  seal 
|§  1755  and  1764  R.  S.,  repealed.  of  the  municipality  for  the  purpose 

(2)  Correction  of  journal. —  of  the  signing  and  sealing  of  deeds 
Clerk  has  neither  the  power  nor  of  the  corporation,  and  its  use  for 
the  right  to  correct  the  journal  of  this  purpose  will  not  be  effectual  in 
council,  after  council  has  passed  such  deeds.  Tiffin  v.  Shawhan,  43 
upon  the  record  of  its  proceedings;  O.  S.  178.  The  corporate  seal  of 
and  mandamus  will  not  lie  to  com-  the  village  is  provided  by  council 
pel  the  clerk  to  do  so.  McClain  v.  '  and  is  in  the  keeping  of  the  mayor. 
McKisson,  15  C.  C.  517,  aff'd  54  lb.  And  see  §  1745  R.  S.,  under 
O.  S.,  673.  Officers    in   Part   II. 

Sec.  1756  R.  S.  [Clerk  to  make  detailed  statement  of  receipts 
and  expenditures.]1  He  shall,  on  or  before  the  third  Monday  in 
March  of  each  year,  make  and  enter  in  the  record  book  of  the 
corporation,  a  detailed  statement  of  all  the  receipts  and  ex- 
penditures, the  number  and  amount  of  bonds  issued,  and  for 
what  purpose  of  the  corporation  for  the  preceding  year,  stating 
from  what  sources  the  money  was  received,  and  to  whom  paid, 
and  for  what  purposes  expended  and  showing  the  exact  condition 
of  the  several  funds  of  the  corporation,  and  all  outstanding 
liabilities,  if  any,  to  whom  due,  and  for  what  purpose.  [1883, 
March  21 :  80  v.  65 ;  Rev.  Stat.  1880 ;  67  v.  71,  §  129.] 

(1)  This  section  is  also  re-enact- 
ed in  §  134  of  the  Code,  where  it 
is  made  to  apply  to  city  auditors. 

Sec.  1757  R.  S.  [Statement  to  be  posted  at  voting  precincts,  or 
published  in  newspaper;  penalty  for  neglecting;  publication  in 
book  form  sufficient.]1    He  shall  cause  a  copy  of  said  detailed 


Code  §201]  VILLAGES.      CLERK.  453 

statement,  which  shall  be  approved  by  the  mayor  to  be  posted  at 
the  places  of  holding  elections  for  officers  of  the  corporation,  on 
the  first  Monday  of  April,  annually ;  any  incorporation  having 
a  population  of  over  two  thousand  (2000),  the  clerk  shall  have 
same  published  once  in  some  newspaper  published  or  of  general 
circulation  in  the  corporation,  at  least  five  days  prior  to  the 
first  Monday  of  April ;  and,  upon  the  order  of  the  council,  the 
clerk  shall,  at  any  time,  furnish  to  it  a  detailed  statement  of  all 
receipts  and  disbursements,  for  such  periods  as  it  may  require. 
Any  clerk  refusing  or  neglecting  to  conform  to  the  provisions 
of  this  and  the  next  preceding  section,  shall  be  fined  by  the 
mayor,  or  police  court  as  the  case  may  be,  not  more  than  thirty 
dollars  or  less  than  twenty-five  dollars  for  the  use  of  the  cor- 
poration. The  provisions  of  section  one  thousand  seven  hundred 
and  fifty-six,  and  one  thousand  seven  hundred  and  fifty-seven 
shall  not  apply  to  any  municipal  corporation  that  publishes 
annually  a  detailed  statement  of  the  receipts  and  expenditures 
in  book  form  or  in  any  other  printed  manner.  [1883,  March 
21:  80  v.  65;  Eev.  Stat  1880;  67  v.  71,  §  130.] 

(1)  This  section  is  also  re-enact- 
ed in  §  134  of  the  Code,  where  it 
is  made  to  apply  to  city  auditors. 

Sec.  1758  R.  S.  [Report  to  auditor  of  state,  etc.]1  He  shall, 
on  or  before  the  first  Monday  of  June,  in  each  year,  report  to 
the  auditor  of  the  state  2  the  aggregate  expenses  of  the  corpora- 
tion for  the  preceding  year,  under  the  following  heads :  school, 
police,  streets,  bridges,  fire  department,  lights,  poor,  salaries, 
and  interest ;  and  also  the  amount  of  the  general  corporation  tax 
for  all  the  preceding  objects,  and  for  any  others  not  enumerat- 
ed, and  the  special  taxes  levied  and  collected  by  the  corporation 
for  the  same  period :  provided,  that  the  city  auditor,  in  any  city 
having  such  officer,  shall  perform  the  duties  imposed  upon  the 
clerk  by  this  and  the  two  preceding  sections.  [67  v.  71,  §  131 ; 
(S.  &  C.  1543).] 

(1)  This  section  is  re-enacted  in  May  10,  1902  (95  O.  L.  511)  which 
§  134  of  the  Code,  where  it  is  made  will  be  found  under  Officers  in 
to  apply  to  city  auditors.  Part    II.      Application    for    forms 

(2)  Reports  to  state  auditor  and  blanks  may  be  made  to  the 
by  public  accounting  officers  are  re-  "  Bureau  of  inspection  and  super- 
quired  to  be  made  in  conformity  with  vision  of  public  offices,"  in  the  of- 
the  uniform  accounting  law,  passed  fice  of   the  auditor   of   state. 

Sec.  1759  R.  S.  [Shall  certify  to  the  court  election  of  certain 
officers.]1   He  shall  certify  to  the  court  of  common  pleas  of  the 


UNIVERSITY 


454  the  ohio   municipal  code.  [Code  §201 

county  in  which  the  corporation  is  situated,  the  election  of 
every  officer  of  the  corporation  having  power  to  discharge  the 
duties  of  a  justice  of  the  peace,  or  to  take  the  acknowledgment 
of  deeds,  or  to  certify  depositions  or  affidavits  to  be  used  within 
the  limits  of  such  corporation,  with  the  date  of  such  election, 
and  the  time  when  such  officer  became  legally  qualified  to 
discharge  the  duties  of  such  office;  which  certificate  shall  be 
made  within  ten  days  after  such  qualification.  [66  v.  171, 
§  132;  (S.  &  C.  1536).] 

( 1 )  This  section  is  also  re-enact- 
ed in  §  134  of  the  Code,  where  it  is 
made  to  apply  to  city  auditors. 

FOEM  OF  CERTIFICATE. 

To  the  Clerk  of  the  Court  of  Common  Pleas, County,  Ohio: 

I, ,  Clerk  of  the  village  of , 

State  of  Ohio,  hereby  certify  that  on  the day  of , 

19 .... ,  was  duly  elected (here 

insert  title  of  office)   and  qualified  for  said  office  on  the day  of 

,   19 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  and  official  seal 
this day  of ,   19 


Clerk  of  the  village  of 

(Seal.) 

Sec.  1761  R.  S.  [Penalty  for  neglect.]1  Every  clerk  whose 
duty  it  shall  be  to  make  such  certificate,  or  record  the  same  when 
presented  for  record,  who  neglects  or  refuses  to  perform  the 
duties  enjoined  by  this  chapter,  shall  pay  to  the  treasurer  of 
the  corporation,  for  every  such  neglect  or  refusal,  the  sum  of 
fifteen  dollars,  to  be  recovered  in  a  civil  action,  at  the  suit  of 
such  corporation;  and  shall  also  be  liable  for  all  damages 
arising  from  such  neglect  or  refusal ;  and  any  corporation  clerk 
who  neglects  to  make  report  as  provided  in  section  seventeen 
hundred  and  fifty-eight  shall  forfeit  one  hundred  dollars,  to  be 
recovered  in  a  civil  action,  with  costs,  in  the  name  of  the  cor- 
poration, and  for  its  use.  [66  v.  172,  §  134;  67  v.  71,  §  131 ; 
(S.  &C.  1536).] 

(1)  This  section  is  also  re-enact- 
ed in  §  134  of  the  Code  where  it  is 
made  to  apply  to  city  auditors. 

Sec.  1762  R.  S.     [When  clerk  shall  perform  duties  of  auditor, 

etc.]     In  corporations  in  which  there  is  no  city  auditor,,  the 
clerk  shall  perform  the  duties  of  auditor,  under  the  direction 


Code  §§  202,  203]       villages,     treasurer.  455 

of  the  council,  and  such  other  duties  pertaining  to  his  offiec  as 
may  be  prescribed  by  the  council ;  x  and  he  shall  have  the 
charge  and  custody  of  the  laws  and  ordinances,  and  the  books, 
records,  and  papers  of  the  corporation,  and  shall  carefully  keep 
and  preserve  them  in  his  office,  and  shall  prepare  and  certify 
all  transcripts  that  may  be  required  of  any  record  or  paper  in 
his  office,  and  shall  be  entitled  to  receive  therefor  the  same  fees 
as  other  officers  for  similar  services.  [1904,  April  25,  97  v. 
383;  66  v.  172,  §  135.] 

( 1 )    Appointing     power.  —  The  tendent   or   janitor    of   a   public   or 

council    was    held    not   to   have    au-  city  hall.     Lillard  v.  Ampt,  4  N.  P. 

thority     to     confer     on     the     clerk  305. 
the    power    to    appoint    a    superin- 

Sec.  1763  R.  S.  [Shall  deliver  books,  etc.,  to  city  auditor.] 
Upon  the  creation  of  the  office  of  city  auditor,1  the  clerk  shall, 
upon  demand  deliver  to  the  incumbent  of  such  office,  when  duly 
qualified,  all  the  records,  books,  papers,  vouchers,  and  docu- 
ments in  his  possession  pertaining  to  the  duties  of  such  auditor. 
[66  v.  172,  §  136.] 

(1)   This    section     inapplicable 

except  upon  advancement  of  village 
to  city. 

Treasurer. 
Sec.  202.  [Treasurer:  election,  term  and  qualification;  pow- 
ers and  duties.]  The  treasurer  shall  be  elected  for  a  term  of 
two  years,  and  shall  serve  until  his  successor  is  elected  and 
qualified.  He  shall  be  an  elector  of  the  corporation.  He  shall 
have  all  the  powers,  perform  all  the  duties,  and  be  subject  to  all 
the  provisions  contained  in  section  135  of  this  act  with  respect 
to  the  office  of  city  treasurer,  and  whenever  the  word  "  city  " 
appears  in  said  section  the  word  "  village  "  shall  be  substituted 
for  this  purpose.1 

(1)  Sections  governing  village  Revised  Statutes  re-enacted  therein, 
treasurers. —  See  note  to  §  135  of  which  by  §  202  above  are  made  ap- 
the    Code,    and    see   sections   of   the       plicable  to  village  treasurers. 

Street  Commissioner. 
Sec.  203.     [Street  commissioner:  appointment,  term,  qualifica- 
tion, vacancies,  duties.]1    The  street  commissioner  shall  be  ap- 


456  the  ohio  municipal   code.  [Code  §204 

pointed  by  the  mayor  and  confirmed  by  council  for  a  term  of 
one  year  and  shall  serve  until  his  successor  is  appointed  and 
qualified.  He  shall  be  an  elector  of  the  corporation.  Vacan- 
cies in  the  office  of  street  commissioner  shall  be  filled  by  the 
mayor  for  the  unexpired  term.  The  street  commissioner,  or 
an  engineer  when  one  is  so  provided  for  by  council,  under  the 
direction  of  council,  shall  supervise  the  improvement  and  repair 
of  streets,2  avenues,  alleys,  lands,  lanes,  squares,  wharves,  land- 
ings, market  houses,  bridges,  viaducts,  sidewalks,  sewers,  drains, 
ditches,  culverts,  ship  channels,  streams  and  water  courses;  the 
lighting,  sprinkling  and  cleaning  of  all  public  places,  and  shall 
perform  such  other  duties,  consistent  with  the  nature  of  his 
office,  as  council  may  require,  and  shall  have  such  assistants  as 
council  may  provide,  who  shall  be  employed  by  the  street  com- 
missioner and  shall  serve  for  such  time  and  at  such  compensa- 
tion as  may  be  fixed  by  council.  The  marshal  in  any  village 
shall  be  eligible  to  appointment  as  street  commissioner. 

(1)   Old  section. —  See    §     1706  (2)   Corresponding     provisions 

R.  S.,  repealed.  applicable      to      cities. —  Compare 

Other  statute.— See   §    1782    R.  §§    140  and    141   of  the   Code  and 

S.   under  Officers   in  Part   II.  see  notes  thereunder,  pp.  851,  352. 

(b)   care  of  parks  and  institutions. 

Sec.  204.  [Provision  for  care,  supervision  and  management  of 
public  institutions.  ]  *  The  council  shall  provide  by  resolution 
or  ordinance  for  the  care,  supervision,  and  management  of  all 
public  parks,  baths,  libraries,  market  houses,  crematories,  sew- 
age disposal  plants,  houses  of  refuge  and  correction,  workhouses, 
infirmaries,  hospitals,  pest  houses,  or  any  of  said  institutions, 
now  owned  or  maintained  or  which  may  hereafter  be  established 
by  any  village.  Provided,  that  whenever  the  council  may  de- 
termine to  plat  any  of  the  streets  as  authorized  by  law,  the 
council  shall  provide  for  the  platting  thereof.2 


Code  §205]  villages,  trustees  of  public  affairs.    457 

(1)   Corresponding      provisions  therein,  and  see  notes  thereto,  page 

applicable      to      cities.—  Compare  851  et  seq. 

§   141  of  the  Code  and  sections  of  (2)   Platting      commission      in 

the     Revised     Statutes     re-enacted  cities. —  Compare  §  142  of  the  Code. 


(c)     TRUSTEES    OF    PUBLIC    AFFAIRS. 

Sec.  205.  [Board  of  trustees  of  public  affairs;  election,  term, 
etc.,  :>r  members;  vacancies.]1  In  all  villages  in  which  water- 
works, electric  light  plants,  artificial  or  natural  gas  plants  or 
other  similar  utilities  are  situate  at  the  time  of  the  passage  of 
this  act,  or  which  at  such  time  are  in  process  of  construction,2 
or  when  council  orders 3  water-works,  electric  light  plants, 
natural  or  artificial  gas  plants,  or  other  similar  public  utility 
to  be  constructed  or  to  be  leased,  or  purchased  from  any  individ- 
ual company  or  corporation,  council  shall  at  such  time  establish 
a  board  of  trustees  of  public  affairs  for  such  village,  consisting 
of  three  members  who  shall  be  residents  of  the  village  and 
shall  be  each  elected  for  a  term  of  two  years ;  provided,  however, 
that  in  the  event  that  the  council  shall  in  accordance  with'  the 
provisions  of  this  act,  establish  such  board  of  trustees  of  public 
affairs,  the  mayor  of  such  village  shall  appoint  the  members  of 
such  board  subject  to  confirmation  by  the  council,  who  shall 
hold  their  respective  offices  until  such  time  as  their  successors 
shall  have  been  elected  in  accordance  with  the  provisions 
hereof,  and  such  successors  shall  be  elected  at  the  next  regular 
election  of  municipal  officers  held  in  such  village.  In  case  of 
any  vacancy  from  death,  resignation  or  otherwise,  the  same 
shall  be  filled  for  the  unexpired  term  by  appointment  by  the 
mayor  subject  to  confirmation  by  the  council. 

[Organization;  powers  and  duties.]  Said  board  shall  organ- 
ize by  electing  one  of  its  number,  president,  and  shall  have  au- 
thority to  elect  a  clerk,  who  shall  be  known  as  the  clerk  of  the 
board  of  trustees  of  public  affairs.     Said  board  shall  have  all 


458  the  ohio   municipal  code.  [Code  §205 

the  powers  and  perform  all  the  duties  that  are  provided  to  be 
performed  by  the  trustees  of  water-works  in  sections  2407,  2409, 
2410,  2411,  2412,  2413,  2414,  2415,  2416,  2417,  2418,  2419, 
2420,  2421,  2422,  2423,  2425,  2426,  2427,  2428,  2429,  2430, 
2431,  2432,  2433,  2434  and  2435  of  the  Kevised  Statutes  of 
Ohio,  and  such  other  duties  as  may  be  prescribed  by  law  or 
ordinance  not  inconsistent  herewith.4  [1906,  April  16,  98  v. 
252.1 

( 1 )  Old  sections. —  Compare  old  etc.  But  under  the  present  section 
§§  2408  R.  S.  and  2487  R.  8.,  re-  council  may  establish  such  "board, 
pealed.  when  it  orders  water-works,  etc. 

(2)  Process  of  construction. —  (3)   Power    to     establish    and 

Meaning  of  this  term,  see  State  ex  maintain      water- works,      lighting, 

rel.    v.    Chillicothe,    7    O.    S.    355.  power,     heating    and     natural    gas 

Where  the  power  was  given  to  es-  plants  is  given  to  all  municipalities 

tablish   a   board    only   when   water-  in  paragraph  15  of  §  7  of  the  Code, 

works,  etc.,  were  already  construct-  page  54. 

ed  or  "in  progress  of  construction,"  (4)    Other    statutes    relating   to 

such    board    could    not    be    chosen  water-works    not    re-enacted    or    re- 

when  the  municipality  had  done  no  pealed  by  the  Code  will  be  found  in 

more     than     authorize     borrowing  Part  II. 
money    to     construct     water-works, 

FORM  OF  ORDINANCE  ESTABLISHING  BOARD  OF  TRUSTEES  OF 
PUBLIC  AFFAIRS. 

Ordinance  No 

To  establish  a  Board  of  Trustees  of  Public  Affairs  for  the  Village  of 


Be  it  ordained  by  the  council  of  the  village  of , 

State  of  Ohio: 

Sec.  1.  That  a  board  of  trustees  of  public  affairs  for  the  village  of 
consisting  of  three  members,  residents  of  said  vil- 
lage, be,  and  hereby  is,  established  as  provided  in  §  205  of  the  act  of  the 
General  Assembly  passed  October  22,  1902  (96  Ohio  Laws,  page  85), 
and  that  the  members  of  said  board  shall  be  elected  in  accordance  with, 
and  shall  be  subject  to,  all  the  provisions  of  the  said  act. 

Sec.  2.     That  the  members  of  said  board  shall  each  receive  $ 

per  annum,  payable 

and  shall  each  give  bond  in  the  sum  of  $ in  the  manner  pro- 
vided by  law. 


Code  §205]   villages,  trustees  of  public  affairs.  459 

Sec.  3.     This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 
Passed 19 

President. 
Attest: 

Clerk. 


Sec.  2407  R.  S.  [General  power  of  council  as  to  land,  etc.,  for 
waterworks.]  The  council  of  a  city  or  village  shall  have  power 
to  take  possession  of  any  land  obtained  for  the  construction  or 
extension  of  water-works,  reservoirs,  or  the  laying  down  of  pipe, 
and  also  any  water  rights  or  easements  connected  with  the  use 
of  water;  and  any  land,  water  right,  or  easement  so  taken 
possession  of  for  water-works  purposes  shall  not  be  used  for  any 
other  purpose,  except  by  authority  of  the  trustees  and  consent  of 
the  council.      [66  v.  205,  §  334;  (S.  &  O.  1529).] 

Sec.  2409  R.  S.  [Salary  of  trustees;  duties  of  trustees  or  board; 
duties  as  to  electric  light  plants  in  certain  villages  and  cities.] 
The  trustees  shall  receive  a  fixed  salary,  to  be  determined  by 
the  council,  and  the  trustees  or  board  shall  manage,  conduct  and 
control  the  works,1  furnish  supplies  of  water,  collect  water- 
rents,  and  appoint  all  necessary  officers  and  agents,  and  fix  the 
term  of  office  and  the  amount  of  salary  of  each  officer  and  agent 
so  appointed.2  Provided,  that  in  all  villages  situate  in  coun- 
ties containing  cities  of  the  first  grade  of  the  first  class  and  in 
all  cities  of  the  fourth  grade  of  the  second  class  3  owning  and 
operating  in  connection  with  its  water-works  an  electric  light 
plant  for  commercial  or  street  lighting,  or  both,  or  when  such 
plant  is  in  progress  of  construction,  or  when  council  orders 
such  plant  to  be  constructed  in  connection  with  the  water-works, 
it  shall  be  the  duty  of  such  trustees,  in  addition  to  the  duties 
above  mentioned,  to  manage,  conduct,  control  and  operate  such 
plant  in  connection  with  the  water-works,  furnish  light,  collect 
light  rents  from  private  consumers,  appoint  all  necessary  officers 
and  agents,  and  fix  the  term  of  office  and  the  amount  of  salary 
of  each  officer  and  agent  so  appointed,  and  all  money  collected 
for  electric  light  purposes  shall  be  deposited  weekly  with  the 
treasurer  of  the  corporation,  and  all  money  arising  from  a  levy 
for  light  purposes,  or  from  the  proceeds  of  the  sale  of  bonds 
issued  for  the  purpose  of  constructing  or  improving  the  electric 
light  plant,  shall  be  paid  out  by  the  treasurer  of  the  corporation 
on  the  order  of  such  trustees,  which  order  shall  be  countersigned 
by  the  clerk  of  the  board  of  trustees ;  and  all  the  provisions  of 


460 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §205 


this  chapter  relating  to  the  powers,  duties,  privileges  and  govern- 
ment of  the  trustees  of  the  water-works  shall,  so  far  as  ap- 
plicable, control  such  trustees  in  the  management  of  such  elec- 
tric light  plant.      [92  v.  192 ;  90  v.  118 ;  66  v.  206,  §  336.] 


( 1 )  Powers. —  Trustees  may  con- 
tract with  a  mill-owner  for  part  of 
his  slack  water  for  use  in  water- 
works. Fremont  v.  June,  8  C.  C. 
124. 

Purchasing  or  leasing  real  es- 
tate.—  The  board  has  not  the  power 
to  purchase  or  lease  real  estate. 
This  power  is  in  council.  Dayton  v. 
Cooper  Co.,  7  N.  P.  495,  and  the 
municipality  will  not  be  estopped 
by  acts  of  the  trustees  in  leasing 
re«J  estate.     lb. 

Municipality,  as  a  riparian 
proprietor,  has  the  right  to  take 
water  from  a  stream  for  the  use 
of  its  water  -works,  and  other  ri- 
parian owners  cannot  complain,  if 
no  more  is  taken  than  required  for 
the  works.  Canton  v.  Shock,  66  O. 
S.  19.  But  see  contra,  Warder  v. 
Springfield,  17  B.  398.  But  the 
municipality  cannot  take  more  than 
a  reasonable  amount  in  supplying 
manufacturers  with  water  power, 
and  it  cannot  supply  inhabi- 
tants outside  the  municipality. 
Canton  v.  Shock,  66  O.  S.  19. 

Sections  construed. —  The  inten- 
tion of  these  sections  on  the  subject 
of  water- works  seems  to  be  to  give 
the  board  full  control  of  the  water- 


works, including  contracting  for  en- 
largements and  improvements,  and 
the  disbursement  of  the  water- 
works fund.  State  v.  Griffin,  4  C. 
C.  156;  Cincinnati  ex  rel.  v.  Cin- 
cinnati, 11  C.  C.  309. 

The  board  would  have  power  to 
appoint  experts  to  investigate  as 
to  the  condition,  sufficiency  of  pres- 
ent works,  etc.  Cincinnati  ex  rel. 
v.  Cincinnati,  11  C.  C.  309. 

Municipal  liability. —  Municipal- 
ity was  held  liable  for  injury 
caused  by  a  defective  service  pipe 
leading  from  a  main  water  pipe,  af- 
ter notice  of  a  leak  and  failure  to 
repair.  Cincinnati  v.  Jacob,  18  B. 
65.  See  generally  as  to  municipal 
liability  notes  under  §  28  of  the 
Code,  p.  116. 

(2)  Removal  of  appointees. — 
Where  the  board  has  the  power  to 
fix  the  terms  of  officers,  and  fixes 
the  term  as  one  year,  "  unless  sooner 
removed,"  it  may  remove  at  any 
time  without  charges  or  a  hearing. 
Lawrence  v.  Cincinnati,  3  Rec.  598. 

( 3 )  See  note  "  Grades  and  class- 
es under  new  Code "  under  §  1599 
R.  S.,  page  31,  and  see  State  v. 
Baker,  55  O.  S.  1. 


Sec.  2410  It.  S.  [By-laws,  etc.]  The  trustees  shall  be  author- 
ized to  make  such  by-laws  and  regulations  as  they  may  deem 
necessary  for  the  safe  economical,  and  efficient  management 
and  protection  of  the  water-works,  and  such  by-laws  and  regu- 
lations shall  have  the  same  validity  as  ordinances,  when  not 
repugnant  thereto,  or  to  the  constitution  and  laws  of  the  state. 
[66  v.  206,  §  337.] 

Sec.  2411  R.  S.  [Assessment  and  collection  of  water  rents; 
Cincinnati.]      For  the  purpose  of  paying  the  expenses  of  con- 


Code  §205]   villages,  trustees  of  public  affairs.  461 

ducting  and  managing  the  water-works  and  also  for  the  purpose 
and  in  the  manner  set  out  and  provided  in  section  2411a  of  the 
Revised  Statutes  of  Ohio,1  the  trustees  or  board  shall  have  the 
power  to  assess  and  collect  from  time  to  time  a  water-rent  of 
sufficient  amount,  in  such  manner  as  they  may  deem  most 
equitable,  upon  all  tenements  and  premises  supplied  with  wa- 
ter ;  2  and  where  more  than  one  tenant  or  water  taker  is  sup- 
plied with  water  from  one  hydrant  or  off  the  same  pipe,  and 
when  the  assessments  therefor  shall  not  be  paid  when  due,  the 
board  shall  look  directly  to  the  owner  of  the  property  for  the 
entire  rent  or  so  much  therefor  [thereof]  as  remains  unpaid 
for  water  furnished  said  premises,  to  be  collected  in  the  same 
manner  as  other  city  taxes,  except  that  in  cities  of  the  first 
grade  of  the  first  class,3  the  board  of  administration  may  pro- 
vide for  assessing  the  cost  and  expenses  of  laying  or  extending 
water  mains  upon  the  lots  or  lands  bounding  or  abutting  upon 
the  streets,  lanes,  alleys,  highways,  market  spaces,  public  land- 
ings and  in  commons  in  or  along  which  such  water  mains  are 
laid  or  extended  by  the  foot  front  [,]  according  to  the  valua- 
tion of  the  same  on  the  tax  list  or  according  to  the  benefits  as 
they  shall  determine.  [94  v.  57;  90  v.  198;  86  v.  364;  84 
v.  10 ;  Eev.  Stat  of  1880 ;  71  v.  109,  §  338.] 

(1)  The  section  here  referred  to  polis  v.  Trustees,  2  N.  P.  161;  Alter 
is  repealed  by  the  Code.     It  related       v.  City,  56  O.  S.  47. 

to  bond  issues  for  establishment  of  Power  limited. —  Power  to  assess 

filtration  plants   by  cities  of  third  and   collect  water   rents   is   limited 

grade  of  second  class.  by    the    statute    conferring   it.     See 

(2)  Nature    of    water    rent. —  Ramsey  v.  Columbus,  12  Dec.  725. 
Water  rent  is  an  assessment  rather  (3)    See  note  "Grades  and  class- 
than  a  tax.     If  not  paid,  the  prop-  es  under  new  Code "  under   §   1599 
erty  may  be  sold  to  pay  it.     Galli-  R.  S.,  p.  31,  and  see  State  v.  Baker, 

55  O.  S.  1. 

Sec.  2412  R.  S.  [Disposition  of  surplus.]  If  there  is  any- 
surplus,  after  paying  the  expenses  of  conducting  and  managing 
the  water-works,  the  same  may  be  applied  to  the  repairs,  en- 
largement, or  extension  of  the  works,  or  of  the  reservoirs,  the 
payment  of  the  interest  of  any  loan  made  for  their  construction, 
or  for  the  creation  of  a  sinking  fund  for  the  liquidation  of  the 
debt;  and  the  amount  authorized  to  be  levied  and  assessed  for 
water-works  purposes  shall  be  applied  by  the  council  to  the 
creation  of  a  sinking  fund  for  the  payment  of  the  indebtedness 
incurred  for  the  construction  and  extension  of  water-works, 
and  for  no  other  purpose  whatever.  [87  v.  4;  86  v.  299;  Rev. 
Stat.  1880 ;  66  v.  206,  §  339.] 


162  the  ohio  municipal  code.  [Code  §205 

Sec.  2413  R.  S.  [Monthly  reports  and  weekly  deposits.] 
The  trustees  or  board  shall  make  monthly  reports  to  the  council 
of  the  receipts  and  disbursements  of  money  belonging  to  the 
water-works,  and  an  annual  report  of  the  condition  of  the  same, 
which  report  the  council  may  cause  to  be  published  in  some 
newspaper  of  general  circulation  in  the  corporation;  and  all 
money  collected  1  for  water-works  purposes  shall  be  deposited 
weekly,  by  the  collectors  thereof,  with  the  treasurer  of  the  cor- 
poration, and  one  of  the  receipts  therefor  shall  be  by  such  col- 
lectors deposited  with  the  trustees,  board,  or  authorized  agent. 
[66  v.  206,  §  340.] 

(1)  Charge  for  reading  me-  ters,  in  addition  to  the  charge  for 
ters. —  Consumers  cannot  be  water  used.  Bancroft  v.  Wall,  29 
charged  for  monthly  reading  of  me-       B.  306. 

Sec.  2414  R.  S.     [Money    to    be    kept    as    a    distinct    fund.] 

Money  so  deposited  shall  be  kept  as  a  separate  and  distinct  fund, 
subject  to  the  order  of  the  trustees  or  board;  and  all  orders 
drawn  by  the  trustees  or  board,1  on  the  treasurer  of  the  cor- 
poration, shall  be  signed  by  one  of  the  trustees  or  board,  and 
countersigned  by  the  clerk  of  the  water-works,  or  of  the  board 
of  public  works.      [66  v.  206,  §  341.] 

(1)    Orders  must  show  on  their  for  improvement  of  water-works  al- 

face  that  they  were  issued  by  order  ready  constructed,  is  to  be  paid  by 

of  the  board,  or  the  treasurer  will  order  of  the  trustees  and  the  treas- 

not  be  bound  to  honor  them.     Trus-  urer  must  pay  such  order.     State  v. 

tees  v.  Corzilius,  35  O.  S.  69.  Griffin,  4  C.  C.  156. 

Money   raised   by  bond   issue, 

Sec.  2415  U.S.  [Trustees  or  boards  may  make  contracts,  etc.] 
The  trustees  or  board  shall  be  authorized  to  make  contracts  for 
the  building  of  machinery,  water-works,  buildings,  reservoirs, 
and  the  enlargement  and  repair  thereof,  and  the  manufacture 
and  laying  down  of  pipe,  and  the  furnishing  and  supplying  with 
connections  all  necessary  fire  hydrants  for  fire  department 
purposes,  and  keeping  the  same  in  repair,  and  for  all  other 
necessary  purposes  to  the  full  and  efficient  management  and 
construction  of  water-works.     [70  v.  11,  §  342.] 

Sec.  2416  R.  S.  [Annual  investigation.]  The  council  of  any 
corporation,  in  which  water-works  are  situated,  or  in  progress 
of  construction,  shall  be  authorized  to  appoint  a  committee  for 
the  investigation  of  all  books  and  papers,  together  with  all 
matters  pertaining  to  the  management  of  the  water-works,  at 


Code  §205]    villages,   trustees  of  public  affairs.  463 

least  once  a  year,  and  oftener,  if  necessary,  by  reason  of  any 
neglect  of  duty,  or  malfeasance  on  the  part  of  any  officer  of 
the  works,  and  any  officer  of  the  works,  found  by  such  com- 
mittee so  offending,  shall  be  liable  to  removal  from  office  by  the 
council.      [66  v.  206  (207),  §  343;   (S.  &  C.  1529).] 

Sec.  2417  R.  S.  [No  charge  for  water  to  extinguish  fires.] 
No  charge  shall  be  made  by  the  trustees  or  board  for  supplying 
water  for  extinguishing  fires  or  cleaning  fire  apparatus,  or  for 
furnishing  and  supplying  connections  and  fire  hydrants,  and 
keeping  the  same  in  repair,  for  fire  department  purposes,  or  the 
cleaning  of  market-houses,  or  for  the  use  of  public  school  build- 
ings, or  for  the  use  of  any  public  buildings  belonging  to  the 
corporation,  or  for  any  hospital,  asylum,  or  other  charitable  in- 
stitution devoted  to  the  relief  of  the  poor,  the  aged,  infirm,  or 
destitute  persons,  or  orphan  children,  and  in  cities  of  the  first 
grade  of  the  first  class  the  board  of  city  commissioners  may, 
when  it  deems  expedient,  supply  water  without  charge  to  any 
zoological  garden  in  or  near  such  cities,  so  long  as  the  company 
or  association  owning  such  garden  pays  no  dividend  to  its 
stockholders;  but  any  member  of  such  board  may  at  any  time 
enter  such  garden  and  examine  into  any  waste  or  unnecessary 
use  of  the  water,  and  the  board  may,  at  any  time,  revoke  the 
grant  of  such  free  use  of  water.1  [70  v.  11,  §  344;  76  v.  84, 
§  1;  (S.  &  C.  1529).] 

(1)   Validity. —  This  section  was  It  was  held  to  apply  to  state  in- 

held  constitutional  in  Gallipolis  v.  stitutions  as  well  as  municipal.  lb. 
Trustees,  2  N.  P.  161. 

Sec.  2418  R.  S.  [Protection  of  attachments,  etc.]  Attachments 
of  whatever  nature  made  to  the  water-pipes,  or  other  fix- 
tures belonging  to  the  water-works,  and  intended  for  public 
use,  shall  be  subject  to  the  same  supervision,  rules,  and  regu- 
lations, as  are  made  for  the  protection  of  water-works  against 
abuse,  destruction,  and  inordinate  or  unnecessary  use  or  waste 
of  water,  or  the  trustees  may  make  general  or  special  rules  and 
regulations  for  such  purpose.      [6Q  v.  207,  §  345.] 

Sec.  2419  It.  S.  [Rules  as  to  contracts.]  The  trustees  or 
board,  before  entering  into  any  contract  for  work  to  be  done,  the 
estimated  cost  of  which  exceeds  ^ve  hundred  dollars,  shall 
cause  at  least  two  weeks'  notice  to  be  given,  in  one  or  more 
daily  newspapers  of  general  circulation  in  the  corporation,  that 
proposals  will  be  received  by  the  trustees,  for  the  performing  of 
the  work  specified  in  such  notice ;  and  the  trustees  shall  contract 


464  the  ohio  municipal  code.  [Code  §205 

with  the  lowest  bidder,  if  in  their  opinion  he  can  be  depended 
on  to  do  the  work  with  ability,  promptness,  and  fidelity;  and 
if  such  be  not  the  case,  the  trustees  may  award  the  contract 
to  the  next  lowest  bidder,  or  decline  to  contract,  and  advertise 
again.1      [Q6  v.  207,  §  346 ;  (S.  &  C.  1529).] 

( 1 )     Awarding    contract.^  See,  lowest  bidder,  if  the  board  does  not 

generally,  notes  to  §  143  of  the  Code.  deem      him      qualified.     Fergus     v. 

Discretion  of  board. —  In  deter-  Columbus,  6  N.  P.  82;   McClain  v. 

mining  which  of  several  bidders  for  McKisson,    15    C.    C.    517    (affirmed 

pumping   machinery    is   the    lowest,  54    O.    S.,    673. 

the  board  is  vested  with  a  discretion.  Certificate  of  money  in  treas- 

Fergus  v.  Columbus,  6  N.  P.  82.  ury,  held   not  necessary  in  case  of 

Next  lowest  bidder  was  held  to  such  contracts,   under  former  laws, 

mean  the  next  qualified  bidder  and  Fergus  v.  Columbus,  6  N.  P.  82. 
not   to   require   award  to   the   next 

Sec.  2420  R.  S.     [Contractors    must    give    bond,    etc.]      The 

trustees  or  board  shall  require  bond  to  be  given,1  with  good  and 
sufficient  security,  for  the  faithful  performance  of  the  work; 
but  no  member  of  the  board  of  trustees,  or  public  works,  shall 
be  such  security ;  nor  shall  any  trustee,  or  member  of  the  board 
of  public  works,  be  a  contractor,  or  in  any  wise,  either  directly 
or  indirectly,  interested  in  any  such  work  to  be  contracted  for,2 
provided  that  in  case  of  emergency,  council  may,  by  a  vote  of 
two-thirds  of  all  the  members  elected,  authorize  the  trustees 
or  board  to  enter  into  such  contracts  without  advertising.  [66 
v.  207,  §  347;  (S.  &  C.  1530).] 

(1)  Bond.— See  note  (7)  to  §  contract.— See  note  (3)  to  §45  of 
143  of  the  Code,  p.  374.  the  Code,  page  176. 

(2)  Members     interested     in 

Sec.  2421  R.  S.  [Extension  of  aqueducts,  etc.,  beyond  corpor- 
ation limits;  mains  and  water-pipes  extended,  at  expense  of  in- 
dividuals, under  supervision  of  water- works  officer.]  The  trustees 
or  board  or  council  of  any  corporation  owning  water-works, 
may,  on  the  written  request  of  any  number  of  citizens  living 
outside  of  the  limits  thereof,  extend,  construct,  lay  down  and 
maintain  aqueduct  and  water-pipes  to  any  distance  outside  the 
corporation  limits,  not  exceeding  four  miles,  and  for  this  pur- 
pose shall  have  the  right  to  make  use  of  such  of  the  public 
streets,  roads,  alleys  and  public  grounds  as  may  be  necessary 
therefor.  And  when  any  person  or  persons,  at  his  or  their 
expense  have  heretofore  or  may  hereafter  lay  down  and  extend 


Code  §205]   villages,  trustees  of  public  affairs.  465 

any  mains  and  water-pipes  beyond  the  limits  of  such  corpora- 
tion, as  herein  provided,  and  such  corporation  has,  by  resolution 
of  its  trustees  of  water-works,  council,  board  of  control  or  ad- 
ministration, or  city  commissioners,  or  either  of  them,  author- 
ized its  superintendent,  or  other  officer  of  the  water-works,  to 
superintend  or  supervise  the  laying  and  extension  of  such  mains 
and  water-pipes,  such  corporation  is  hereby  authorized  and  re- 
quired to  furnish  water  to  the  residents  and  property  holders 
on  the  line  of  such  mains  and  water-pipes,  but  subject  to  the 
same  rules  and  regulations  except  as  to  rates,  which  shall  not 
exceed  those  charged  within  the  corporation  by  more  than  one- 
tenth  thereof,  that  such  corporation  furnishes  water  to  its  own 
citizens ;  and  all  ordinances  except  those  relative  to  taxation  or 
assessment,  resolutions,  rules  and  regulations  relative  to  the  con- 
struction, maintenance  and  operation  of  water-works,  mains, 
hydrants,  service-pipes  and  connections,  and  the  protection 
thereof,  now  in  force  and  operation  on  the  municipality,  or 
which  may  hereafter  be  passed  and  adopted,  shall  operate  in 
like  manner  in  the  territory  outside  of  the  municipality  when 
such  extension  has  been  made,  and  for  the  enforcement  of  the 
same  the  jurisdiction  of  the  mayor  and  police  shall  extend  into 
and  over  said  territory.  S.aid  corporation  shall  take  full  charge 
and  control  of  said  mains  and  water-pipes,  keep  the  same  in  re- 
pair at  its  own  expense,  and  in  the  event  of  annexation  to  the 
corporation  of  the  territory  wherein  such  mains  and  water- 
pipes  have  been  laid,  such  corporation  shall  pay  to  such  person 
or  persons  a  just  compensation  therefor,  and  shall  thereupon 
become  the  owner  thereof.  [90  v.  35;  66  v.  207,  §  348;  (S. 
&  S.  866).] 

Sec.  2422  It.  S.  [Construction  and  regulation  thereof.]  Such 
aqueducts  and  pipes  shall  be  so  constructed  and  laid  as  not  to 
interfere,  unnecessarily  with  the  use  of  such  streets,  roads, 
alleys  and  public  grounds,  as  public  highways,  and  public 
grounds ;  and  the  corporation  so  extending  and  establishing  any 
parti  of  its  water-works  outside  of  its  limits,  shall  have  the  same 
power  and  jurisdiction  to  prevent  or  punish  any  pollution  of, 
or  injury  to,  the  water  so  conveyed,  or  any  injury  to  the  works, 
or  any  portion  thereof,  as  they  may  have  within  the  limits  of  the 
corporation.      [66  v.  208,  §  349.] 

Sec.  2423  It.  S.  [Water- works  in  contiguous  cities  or  villages.] 
Any  city  or  village  owning  water-works,  whose  territory  is  con- 
tiguous to  that  of  another  city  or  village,  may  with  the  assent 
of  such  other  city  or  village,  establish  and  maintain  such  por- 
tion of  its  water-works,,  as  it  deems  advisable,  within  the  limits 


466  THE    OHIO    MUNICIPAL    CODE.  [Code  §205 

of  such  other  city  or  village,  and  shall  have  the  right  to  make 
use  of  such  of  the  public  streets,  alleys,  and  public  grounds  of 
such  other  city  or  village  as  shall  be  necessary,  for  the  purpose 
of  constructing,  laying  down,  and  maintaining  all  such  aque- 
ducts and  water-pipes  as  shall  be  required  in  connection  with 
such  water-works,  for  the  conveyance  of  water  along  and  across 
such  streets,  alleys,  and  public  grounds.  [66  v.  208,  §  350; 
(S.  &C.  1538).] 

Sec.  2425  R.  S.  [Authority  to  supply  contiguous  cities  or  vil- 
lages with  water.]  Any  city  or  village  which  has  established, 
or  hereafter  establishes  water-works,  may  enter  into  a  contract 
with  any  contiguous  city  or  village  for  the  supply  of  the  latter 
with  water,  upon  such  terms  as  shall  be  mutually  agreed  upon 
by  the  councils  of  the  respective  municipal  corporations;  and 
any  city  or  village  which  has  water-works,  is  hereby  authorized 
and  empowered  to  dispose  of  any  surplus  water,  for  manufac- 
turing or  other  purposes,  by  lease  or  otherwise,  upon  such  terms 
as  may  be  agreed  upon  by  the  board  of  trustees  of  the  water- 
works., or  public  works,  and  approved  by  the  council  of  such 
city  or  village ;  and  all  moneys  received  for  such  surplus  water, 
shall  be  applied  to  the  payment  of  the  principal  and  interest  of 
the  bonds  issued  for  the  construction  of  such  water-works,  or 
other  expenses  incident  to  the  maintenance  of  the  water-works ; 
provided,  that  no  lease  shall  be  made  for  a  longer  term  than 
twenty  years.1     [69  v.  25,  §  352  (S.  &  C.  1539.)] 

(1)  Villages  not  contiguous  clause  of  this  section.  Wright  v. 
cannot  be  contracted  with  for  water  Kennedy  Heights,  1  C.  C.  (N.  S.) 
supply  under  either  first  or  second      195;   25  C.  C.  409. 

Sec.  2426 U.S.  [Cost  thereof,  how  raised.]  The  amount  to 
be  paid  for  such  supply,  shall  be  raised  by  such  city  or  village  in 
the  manner  provided  for  the  payment  of  the  expense  of  con- 
ducting and  managing  water-works  constructed  wholly  by  a  city 
or  village;  and  the  amount  so  received  by  the  city  or  village 
furnishing  such  supply,  shall  be  applied  to  the  payment  of  the 
interest  on  the  sum  borrowed  for  the  construction  of  such  water- 
works, or  to  defray  the  expense  of  their  management,  as  the 
board  of  trustees  for  water-works,  or  board  of  public  works, 
shall  direct.      [66  v.  208,  §  353.] 

Sec.  2427  R.  S.  [Works  to  be  joint  property.]  Upon  the  an- 
nexation of  one  municipal  corporation  to  another,  the  water- 
works theretofore  construed  by  either,  shall  thereby  become  the 
joint  property  of  the  united  corporation,  and  shall  thereafter 
be  managed  by  the  board  of  trustees  of  the  corporation  to  which 
such  annexation  is  made,  or  board  of  public  works,  as  the  case 
may  be.     [66  v.  208,  §  354;  (S.  &  C.  1539).] 

Sec.  2428  It.  S.  [Termination  of  contract  upon  annexation, 
etc.]    Any  contract  entered  into  by  one  municipal  corporation 


Code  §205]   villages,  trustees  of  public  affairs.         467 

for  the  supply  of  water  to  the  other,  as  hereinbefore- 
provided,  shall  be  terminated  by  such  annexation ;  and  so  much 
of  the  debt  incurred  by  either,  in  the  construction  of  water- 
works, as  remains  unpaid,  shall  thereafter  be  a  charge  upon  the 
united  corporation,  to  the  same  extent  that  the  separate  debt  of 
either,  incurred  as  aforesaid,  was,  before  such  union,  a  charge 
upon  the  corporation  which  constructed  the  same.  [66  v.  209, 
§  355;  (S.  &C.  1539).] 

.  Sec.  2429  It.  S.  [Tax  for  payment  of  certain  interest.]  For  the 
purpose  of  paying  the  interest  on  the  money  borrowed  for  the 
erection  and  completion  of  water-works,  during  the  erection  and 
completion  thereof,  and  before  they  shall  have  been  put  in  oper^ 
ation,  a  tax  of  sufficient  amount  shall  be  assessed  and  collected, 
each  and  every  year,  in  the  usual  manner  of  levying  and  col- 
lecting taxes  in  the  corporation  upon  all  the  taxable  property 
thereof.      [66  v.  209,  §  356;  (S.  &  C.  1527).] 

Sec.  2430  It.  S.  [Tax  for  payment  of  interest  on  loans;  Toledo.] 
For  the  purpose  of  paying  the  interest  on  any  loan  which  any 
city  or  village  may  heretofore  have  made,  or  may  hereafter 
make,  for  the  erection  or  extension  of  water-works,  and  after 
they  shall  have  been  put  in  operation,  and  for  the  building  of 
machinery,  a  tax  of  sufficient  amount  may  be  assessed  and 
collected,  in  addition  to  the  amount  now  authorized  by  law, 
by  the  common  council,  in  each  year,  upon  all  the  taxable  prop- 
erty, both  real  and  personal,  in  said  city  or  village,  provided 
that  in  cities  of  the  third  grade  of  the  first  class  1  one-fourth  of 
the  annual  interest  upon  any  such  loan  or  loans  shall  be  con- 
sidered and  treated  as  expenses  of  operation,  and  shall  be  paid 
from  the  revenues  derived  from  such  water-works,  and  a  tax 
shall  be  levied  for  only  three-fourths  of  said  interest.  [90  v. 
326;  88  v.  153;  66  v.  209,  §  357.] 

(1)  See  note  "Grades  and  class-  E.  S.,  page  31,  and  see  State  v. 
es   under  new  Code,"  under   §   159P      Baker,  55  O.  S.  1. 

Sec.  2431  It.  S.  [Tax  a  iien  apon  property.]  The  tax,  when 
levied  and  assessed,  shall  be  a  lien  upon  the  property  upon 
which  the  same  is  levied,  and  a  charge  against  the  owners 
thereof,  and  shall  be  certified  to  the  auditor  of  the  county,  and 
placed  upon  the  tax-list  in  a  separate  column  thereof,  and  col- 
lected as  other  taxes ;  and  the  same  shall  be  paid  to,  and  be  under 
the  control  of,  the  trustees  of  the  water-works,  or  board  of  public 
works,  as  the  case  may  be.      [66  v.  209,  §  358.] 

Sec.  2432  It.  S.  [Laying  pipes  in  highway.]  The  council,  or 
the  board  of  administration  in  cities  of  the  first  grade  of  the 


468  the  ohio  municipal  code.         [Code  §205 

first  class,  may  prescribe,  by  ordinance,  or  said  board  of  admin- 
istration may  provide  by  resolution  for  the  laying  down  of 
water-pipes  in  all  highways  about  to  be  paved,  macadamized 
or  otherwise  permanently  improved,  and  for  the  assessment  of 
the  cost  and  expense  thereof  upon  the  lots  or  parcels  of  land 
adjoining  or  abutting  upon  the  highways  in  which  the  same 
are  laid ;  but  in  no  case,  except  as  a  sanitary  measure,  shall  the 
council  require  any  house  connections  to  be  built  further  from 
the  main  pipe  than  the  outer  line  of  the  curbstone.  [90  v, 
198;  66  v.  209,  §  359.] 

Sec.  2433  R-.  S.     [Criminal  jurisdiction;  territorial  limits.]    The 

jurisdiction  of  any  municipal  corporation  to  prevent  the  pollu- 
tion of  its  water  supply  and  to  provide  penalty  therefor,  shall 
extend  twenty  miles  beyond  the  corporation  limits.  Whoever 
pollutes  any  running  stream,  the  water  of  which  is  used  for 
domestic  purposes  by  any  municipality  by  putting  therein  any 
putrid  or  offensive  substance,  (other  than  fresh  or  salt  water), 
injurious  to  health  shall  be  guilty  of  a  misdemeanor,  which 
shall  be  punishable  by  a  fine  of  not  less  than  five  or  more  than 
&ve  hundred  dollars.  It  shall  be  the  duty  of  the  board  of 
public  service  or  board  of  trustees  of  public  affairs  of  any 
municipal  corporation  to  enforce  the  provisions  of  this  section. 
[97  v.  135;  66  v.  209.] 

Sec.  2434  E.  S.  [Municipalities,  except  cities  of  the  first  grade, 
first  class,  empowered  to  contract  for  a  water  supply;  contract 
to  be  submitted  to  a  vote  of  electors.]  Any  municipal  corpora- 
tion, except  cities  of  the  first  grade  of  the  first  class  *  shall  have 
power  to  contract  with  any  individual  or  individuals,  or  any 
other  incorporated  company  for  supplying  water  for  fire  pur- 
poses, or  for  cisterns,  reservoirs,  streets,  squares,  and  other 
public  places  within  the  corporate  limits,  or  for  the  purpose 
of  supplying  the  citizens  of  such  municipal  corporation  with 
water  for  such  time,  and  upon  such  terms  as  may  be  agreed 
upon.  Provided,  that  no  such  contract  shall  be  executed  or 
binding  upon  any  such  municipal  corporation  until  the  same 
shall  have  been  ratified  by  a  vote  of  the  electors  thereof,  at  a 
special  or  general  election,  and  such  municipal  corporation  shall 
have  the  same  power  to  protect  any  such  water  supply  and 
prevent  the  pollution  thereof  as  though  such  water-works  were 
owned  by  said  municipal  corporation.2  [1885,  January  29 : 
82  v.  11;  80  v.  71 ;  78  v.  42 ;  Eev.  Stat.  1880 ;  71  v.  93,  §  54.] 

(1)  See  note  6,  p.  31.  of    such    a    contract.       Defiance    v. 

(2)  Certificate  of  money  in  Council,  23  C.  C.  96,  (reversed  on 
treasury  held  not  necessary  in  case      other  grounds,  68  O.  S.  520). 

Sec.  2435  R.  S.  [Limitation  in  creating  debts.]  Except  as  oth- 
erwise provided  in  this  title,  the  board  of  public  works,  in  cities 
of  the  first  grade  of  the  first  class1  shall  not  hereafter  be  per- 


Code  §  206]    villages,    police  and  fire  departments.     469 

mitted  to  create  any  debt  for  the  prosecution  of  work  upon  the 
water-works,  beyond  the  yearly  net  income  of  the  water-works, 
nor  make  any  contract  in  any  year  that  can  not  be  met  and 
paid  from  the  income  of  the  water-works  for  the  year;  and  all 
debts  created  in  violation  of  these  provisions  shall  be  absolutely 
void ;  nor  shall  the .  council  create  any  debt,  or  borrow  any 
money  for  the  use  of  the  water-works,  except  as  authorized  in 
this  title.      T72  v.  87,  §  3.1 

( 1 )  See  note  to  §  2430  R.  S.,  p.  467. 

(d)      POLICE  1    AND   EIRE   DEPARTMENTS. 

Sec.  206.  [Marshal:  election,  term,  qualification,  powers  and 
duties;  deputy  marshal,  policemen,  etc.;  appointment,  compensa- 
tion, etc.]2  The  marshal  shall  be  elected  for  a  term  of  two 
years,  shall  serve  until  his  successor  is  elected  and  qualified 
and  shall  be  an  elector  of  the  corporation.  He  shall  be  the 
peace  officer  of  the  village,  and  the  executive  head,  under  the 
mayor,  of  any  police  force  now  or  hereafter  established.  He 
shall  have  such  powers  and  perform  such  duties  as  are  conferred 
and  required  in  sections  1848,  1849,  1850,  1851,  1852,  1853 
and  1854,  of  the  Revised  Statutes  of  Ohio.  Council  may  pro- 
vide for  such  deputy  marshals,3  policemen,  night  watchmen 
and  special  policemen  as  it  may  deem  best,  and  fix  their  duties, 
periods  of  service,  bonds  and  compensation,  and  they  shall  be 
appointed  by  the  mayor,  and  confirmed  by  the  council  and  may 
be  removed  by  him  for  cause  which  shall  be  stated  in  writing 
to  council.  The  marshal  and  the  deputy  marshals,  policemen, 
or  night  watchman  under  him,  shall  have  such  powers  as  are 
now  conferred  by  law  upon  police  officers  in  all  villages  of 
the  state,  and  such  other  powers,  not  inconsistent  with  the 
nature  of  their  offices,  as  may  be  conferred  by  ordinance. 

( 1 V     Power    to     organize    and  where  the  mayor  made  appointments 

maintain     police     department    is  of  night  watchmen  and  policemen, 

conferred    upon    all    municipalities  it  was  held  he  could  not  appoint  un- 

in    paragraph     14    of    §    7    of    the  til  authorized  by  ordinance  of  coun- 

Code,   page  53.  cil    to    do    so.     Schwegman    v.    St. 

(2)  Old  section   1847  R.  S.,  re-  Bernard,   12  Dec.  9. 

pealed;  and  compare  old  §  2023  R.  Duties    of   deputy   marshals. — 

S.,  repealed.  For    construction    of    §§    1848    and 

(3)  Appointment  of  deputy  1849  R.  S.  and  the  powers  and  du- 
marshals. —  Under  former  statutes  ties  of  deputy  marshals  in  villages. 


470  the  ohio  municipal  code.  [Code  §206 

see  Schwegman  v.   St.   Bernard,   12  ments  made.     Uhrig  v.  Reading,   8 

Dec.  9.  N.  P.  573. 

Certificate  of  money  in  treas=  Powers  and  duties  of  deputies 

ury,  necessary  to  meet  salaries,  was  are  same  as  those  of  marshals.  Uh- 

held    necessary    before    such    offices  rig  v.  Reading,  8  N.  P.  573. 
could   be  provided    for    or  appoint-  « 

Sec.  1848  U.S.  [Duties  of  marshal.]  He  shall  execute  and 
return  all  writs  and  process  to  him  directed  1  by  the  mayor,  and 
shall,  by  himself  or  deputy,  attend  on  the  sittings  of  said  court, 
to  execute  the  orders  and  process  thereof,  and  to  preserve  order 
therein,2  and  his  jurisdiction,  and  that  of  his  deputies,  in  the 
execution  of  all  such  writs  and  process,  and  in  criminal  cases, 
and  in  all  cases  of  a  violation  of  the  ordinances  of  the  corpora- 
tion, shall  be  co-extensive  with  the  county,  and  in  civil  cases 
shall  be>  co-extensive  with  the  jurisdiction  of  the  mayor  in  the 
same.      [71  v.  76,  §  141.] 

(1)    Reward   for  arrest  offered  tion  for  the  service.     Smith  v.  Com- 

by  person  from  whom  property  was  missioners,  9  O.  25. 
stolen,  cannot  be  claimed  by  officer  (2)    Duties  in  court. —  The  fact 

arresting    under    magistrate's    war-  that    the   marshal   arrested   the   ac- 

rant    given    him    for    the    purpose.  cused    under    a    warrant,    does    not 

Gillmore    v.    Lewis,    12    O.    281.  disqualify   the   marshal   to   perform 

Officer  going  outside  the  state  and  his    duties   in    the    selection    of   the 

arresting    accused    under    a    magis-  jury  to  try  the  cause.     Mineral  City 

trate's  warrant,  is  acting  beyond  his  v.  Render,   51   O.   S.    122. 
powers,  and  cannot  claim  compensa- 

Sec.  1849  R.  S.  [To  suppress  riots,  etc.]  He  shall  suppress 
all  riots,  disturbances,  and  breaches  of  the  peace,  and  to  that 
end  may  call  upon  the  citizens  to  aid  him;  he  shall  arrest  all 
disorderly  persons  in  the  corporation,  and  pursue  and  arrest  any 
person  fleeing  from  justice  in  any  part  of  the  state ;  he  shall  ar- 
rest 1  any  person  in  the  act  of  committing  any  offense  against  the 
laws  of  the  state,  or  the  ordinances  of  the  corporation,  and 
forthwith  bring  such  person  before  the  mayor,  or  other  com- 
petent authority,  for  examination  or  trial ;  and  he  shall  receive 
and  execute  any  proper  authority  for  the  arrest  and  detention  of 
criminals  fleeing  or  escaping  from  other  places  or  states.  [66 
v.  173,  §  142.] 

(1)  Arrest  without  warrant. —  In  cases  of  breach  of  the  peace, 
See  §  7129  R.  S.,  providing  for  ar-  arrest  without  warrant  cannot  be 
rest  without  warrant;  §  1849  must  made  unless  the  offense  was  com- 
be construed  with  §  7129.  State  v.  mitted  in  the  presence  of  the  officer. 
Lewis,  50  O.  S.  179.  lb. 


Code  §206]   villages,  police  and  fire  departments.      471 

Where   the   officer   is  justified    In  reasonable  cause  to  believe  that  the 

making  arrest  without  warrant  it  is  person  arrested  was  guilty  of  the  01- 

not  necessary  to  the  lawfulness   of  fense.     Burch  v.   Franklin,  7  !N.  P. 

the  arrest  that  the  offender  be   in-  155. 

formed  of  the  cause  of  the  arrest,  Violating,     city      ordinances. — 

where   the   officer  and   cause   of  ar-  Council    may   order    arrest    without 

rest  were  known   to  him.     Wolf  v.  warrant  of  persons  violating  city  or- 

State,  19  0.   S.  248.  dinances,  if  in  view  of  officer.   White 

An  officer  acting  bona  fide  may  ar-  v.  Kent,  11  O.  S.  550. 
rest  without  warrant  one   carrying  Holding      until      warrant      ob- 

concealed   weapons,   if  the  informa-  tained. —  Person    arrested    without 

tion  leading  to  the  arrest  would  jus-  warrant    can    be    detained    only    as 

tify    a   prudent   man    in    so    acting.  long   as    is    reasonably    required    to 

Ballard   v.    State,    43   O.    S.    340.  secure  warrant.     Leger   v.   Warren, 

Officer  without  warrant  cannot  ar-  62  O.  S.  500.     As  to  reasonableness 

rest  on  mere  suspicion  that  the  per-  of  delay,  see  Raitz  v.  Green,   13  C. 

son  arrested  is  a  deserter  from  the  C.  455. 

army.     Kendall  v.'  Scheve,   3  C.  C.  Fugitive    from    another    state 

526.     But  a  well-grounded  suspicion  may  be  held  a  reasonable  time  until 

would    be    enough.     State    v.    West,  requisition    papers    can    be    issued. 

3  O.   S.  509.  Rea  v.  Smith,  2  Handy,  193. 

The  officer  must  believe  and  have 

Sec.  1850  R.  S.  [Powers,  responsibilities,  fees,  etc.]  He  shall 
have,  in  the  discharge  of  his  proper  duties,  like  powers,  be  sub- 
ject to  like  responsibilities,  and  shall  receive  the  same  fees,  as 
sheriffs  and  constables  in  similar  cases,  for  services  actually  per- 
formed by  himself  or  his  deputies,  and  such  additional  com- 
pensation as  the  council  may  prescribe ;  but  in  no  case  shall  he 
receive  any  fees  or  compensation  for  services  rendered  by  any 
watchman  or  other  officer,  nor  shall  he  receive  for  guarding,  safe 
keeping,  or  conducting  into  the  mayor's  or  police  court,  any 
person  arrested  by  himself  or  deputies,  or  by  any  other  officer, 
a  greater  compensation  than  twenty  cents.      [66  v.  173,  §  143.] 

Sec.  1851  R.  S.  [Disposition  of  fines,  etc.]  All  fees,  costs, 
fines,  and  penalties  by  him  collected,  shall  immediately  be 
paid  over  to  the  mayor,  and  he  shall  report  to  the  council 
monthly  the  amount  thereof,  and  from  whence  and  for  what 
purpose  collected,  and  when  paid  over.      [66  v.  173,  §  144.] 

Sec.  1852  R.  S.  [Disposition  and  record  of  stolen  property.] 
All  stolen  or  other  property  taken  by  the  members  of  the  police 
force,  in  cities  of  the  second  class,  shall  be  delivered  to  the 
marshal,  or  officer  performing  like  duties,  who  shall,  in  a  book 
to  be  kept  for  that  purpose,  keep  a  record  of  the  same,  together 
with  the  name  of  the  person  from  whom  taken,  the  probable 
value  of  the  article,  and  such  other  information  as  may  seem 
to  him  necessary.      [74  v.  75,  §  1.] 


472  the  ohio  municipal  code.         [Code  §207 

Sec.  1853  R.  S.  [To  be  held  subject  to  order  of  mayor.]  Such 
officer  shall  permit  all  persons  to  examine  such  record  at  their 
pleasure;  he  shall  hold  all  such  goods  or  property  subject  to 
the  order  of  the  mayor,  and  dispose  of  the  same  as  the  mayor 
may  direct;  and  when  any  such  goods  or  property  are  sold  by 
him,  he  shall  forthwith  pay  all  sums  arising  from  such  sale  into 
the  city  treasury.      [74  v.  75,  §  1.] 

Sec.  1854  R.  S.  [Report  to  mayor  in  regard  to  stolen  property.] 
Such  officer  shall,  every  thirty  days,  deliver  to  the  mayor  of  his 
city  a  statement,  in  writing,  of  all  articles  of  goods  or  prop- 
erty which  have  come  into  his  hands  by  virtue  of  his  office, 
which  shall  show  what  disposition  has  been  made  of  the  same ; 
which  statement  must  be  sworn  to  by  such  officer,  who  is  hereby 
made  responsible  to  the  mayor  for  all  such  articles,  or  their 
true  value.      [74  v.  75,  §  2.] 

Sec.  207.  [Fire  department:  organization,  etc.]1  In  any  vil- 
lage which  now  maintains,  or  may  hereafter  establish,  a  fire 
department,  the  head  of  said  department  shall  be  a  fire  chief, 
an  elector  oi  the  corporation,  who  shall  be  appointed  by  the 
mayor,  for  a  term  of  two  years.2  Council  may  provide  for  the 
employment  of  such  firemen  as  it  may  deem  best,  and  fix  their 
compensation,  or  for  the  services  of  volunteer  firemen.  All 
firemen,  other  than  volunteers,  shall  be  appointed  by  the  mayor 
for  terms  of  one  year,  by  and  with  the  advice  and  consent  of 
council.  In  the  management  of  the  fire  department  and  the 
prevention  of  fires,  council  shall  have  all  the  powers  conferred 
by  general  law  in  sections  2470,  2471,  2472  and  2473,  of  the 
Eevised  Statutes  of  Ohio,  and  the  fire  chief  shall  have  all  the 
powers  conferred  upon  a  fire  engineer  in  sections  2474  and 
2475,  of  the  Kevised  Statutes  of  Ohio. 

(1)  Power  to  organize  and  Power  of  the  mayor  under  former 
maintain  fire  department  is  statutes  to  remove  fire  chief  and  de- 
conferred  upon  all  municipalities  clare  a  vacancy.  See  State  ex  rel. 
in  paragraph  14  of  §  7  of  the  v.  Bryson,  44  0.  S.  457;  State  v. 
Code,  page  53. '  Heinmiller,  38  O.  S.  101. 

(2)  Removal    of    fire    chief  — 

Sec.  2470  R.  S.  [Powers  of  council  as  to  fire  department.] 
The  council  of  any  city  or  village  shall  have  power  to  estab- 


Code  §207]   villages,  police  and  fire  departments.      473 

lish  all  necessary  regulations  to  guard  against  the  occurrence 
of  fires,  and  protect  the  property  and  lives  of  the  citizens 
against  damage  and  accidents  resulting  therefrom ;  and  for  this 
purpose,  to  establish  and  maintain  a  fire  department,  and  pro- 
vide for  the  establishment  and  organization  of  fire  engine  and 
hose  companies,  and  provide  such  by-laws  and  regulations  for 
the  government  of  such  companies  as  may  be  deemed  necessary 
and  proper:  provided,  that  no  active  volunteer  fireman,  or 
one  who  has  served  ^.ve  years  consecutively  as  a  volunteer  fire- 
man, shall  be  required  to  serve  on  juries,  or  perform  military 
duty  in  time  of  peace,  or  labor  on  the  highways.1  [67  v.  76, 
§  326;  69  v.  54,  §  1.] 

(1)   Municipal  liability. — See  note  ( 1 )  under  §  151  of  the  Code,  page  389. 

Sec.  2471  R.  S.  [To  purchase  fire  engines,  etc.]  The  council 
may  also  purchase,  for  its  own  use,  or  for  the  use  of  such  com- 
panies, all  necessary  fire  engines,  either  steam  or  hand,  hose 
carriages  and  hose,  and  all  such  other  apparatus  and  instru- 
ments as  shall  be  deemed  necessary  to  the  extinguishment  of 
fires,  and  establish  lines  of  fire  alarm  telegraph  within  the 
limits  of  the  corporation.1      [66  v.  204,  §  327.] 

( 1 )  Municipal  liability  for  fail-  for  extinguishing  fires,  see  notes 
ure    to    provide    necessary    agencies      under  §  151  of  the  Code,  page  389. 

Sec.  2472  R.  S.  [To  erect  necessary  buildings,  etc.]  The 
council  may  also  provide  or  erect  all  necessary  and  suitable 
buildings,  containing  rooms  for  fire  engines,  hose  carriages,  fire 
apparatus,  and  instruments,  and  for  the  meetings  of  the  fire  and 
hose  companies.1      [66  v.  204,  §  328.] 

(1)     Not    subject    to    levy    on  not   subject  to  levy   under  a   judg- 

execution. —  A     building     erected  ment  against  the    city.     Cincinnati 

for  a  fire  engine  house,  but  rented  v.  Frost,  Stearns  &  Co.,  5  B.  684. 
by   the   city   for  other   purposes,   is 

Sec.  2473 U.S.  [To  regulate  the  erection  of  structures,  etc.] 
The  council  shall  have  power  to  regulate  the  erection  of  houses 
and  business  structures  and,  on  the  petition  of  the  owners  of 
not  less  than  two-thirds  of  the  ground  included  in  any  square, 
or  half-square,  prohibit  the  erection  on  any  such  square,  or 
half -square,  of  any  building,  or  addition  to  any  building  more 
than  ten  feet  high,  unless  the  outer  walls  be  made  of  iron,  stone, 
brick  and  mortar,  or  of  some  of  them,  and  to  provide  for  the 
removal  of  any  building  or  additions  erected  contrary  to  such 


474  the  ohio  municipal  code.  [Code  §207 

prohibition ;  1  and  in  cities  of  the  first  class  2  the  council  may 
prohibit,  within  such  limits  as  it  may  deem  proper,  the  erec- 
tion of  buildings,  unless  the  outer  walls  be  constructed  of  iron, 
brick  and  mortar,  or  stone,  brick  and  mortar.  [91  v.  124 ;  66 
v.  204,  §§  329,  333.] 

( 1 )   Buildings    already    erected  ( 2 )   See  notes  "  Grades  and  class- 

before  the  passage  of  the  ordinance      es  under  new  Code "  under  §    1599 
may  be  moved  from  one  part  of  the      R.  S.,  page  31. 
prescribed  limits  to  another.    Cleve- 
land v.  Lenze,  27  O.  S.  383. 

FORM  OF  PETITION  FOR  REGULATION  OF  ERECTION  OF 
BUILDINGS. 

To  the  council  of  the  village  of ,  State  of  Ohio : 

The  undersigned,  being  the  owners  of  two-thirds  of  the  ground  included 
in   the  square    [or  half*  square]    bounded   as  follows:    (here  insert  street 

boundaries  of  square  or  half  square ) ,  in  the  village  of , 

hereby  petition  your  honorable  body  to  pass  the  proper  legislation  to  pro- 
hibit the  erection  on  such  square  [or  half  square]  of  any  building  or  addi- 
tion to  any  building  more  than  ten  feet  high,  unless  the  outer  walls  be  made 
of  iron,  stone,  brick  or  mortar,  or  of  some  of  them,  and  to  provide  for  the 
removal  of  any  buildings  or  additions  erected  contrary  to  such  prohibition. 

,  owner  of feet  front. 

,  owner  of feet  front. 

etc.,  etc. 

FORM  OF  ORDINANCE  TO  REGULATE  THE  ERECTION  OF 
BUILDINGS. 

Ordinance  No 

To  regulate  the  erection  of  buildings  on  the  square  bounded 


Be  it  ordained   by  the  council   of  the  village  of , 

State   of  Ohio: 

Sec.  1.  That  in  pursuance  of  a  petition  by  the  owners  of  two- thirds 
of  the  ground  included  in  the  square  [or  half  square]  bounded  by  (here 
insert  boundaries)  presented  to  council  for  that  purpose  and  the  power 
vested  in  the  council  by  law,  the  erection  on  said  square  [or  half  square] 
of  any  building  or  addition  to  any  building,  more  than  ten  feet  high, 
unless  the  outer  walls  be  made  of  iron,  stone,  brick,  or  mortar,  or  of  some 
of  them,  be  and  the  same  is  hereby  prohibited. 

Sec.  2.  That  any  building  or  buildings  or  additions  to  any  building 
erected  contrary  to  the  provisions  of  this  ordinance  shall,  after  thirty 
days'  notice  to  the  owner  to  remove  the  same,  be  removed  by  the  fire 
chief  and  the  expense  of  such  removal  charged  to  the  owner. 


Code  §208]   villages,  police  and  fire  departments.      475 

Sec.  3.     This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 
Passed 19 

Mayor. 
Attest :  ' 

Clerk. 

Sec.  2474 U.S.  [To  invest  fire  engineer  with  power,  etc.] 
The  council  may  invest  the  fire  engineer,1  or  any  other  officer 
of  the  fire  or  police  department,  with  the  power,  and  impose  on 
him  the  duty,  to  be  present  at  all  fires,  investigate  the  cause 
thereof,  examine  witnesses,  and  compel  their  attendance  and 
production  of  books  and  papers,  and  to  do  and  perform  all  such 
other  acts  as  may  be  necessary  to  the  effective  discharge  of 
such  duties,      [66  v.  205,  §  330.] 

( 1 )    This  officer  would  now  be  the  fire  chief. 

Sec.  2475 U.S.  [Engineer,  etc.,  may  make  arrests,  etc.] 
Such  officer  shall  have  power  to  administer  oaths,  make  ar- 
Tests,  and  enter,  for  the  purpose  of  examination,  any  building 
which,  in  his  opinion,  is  in  danger  from  fire;  and  he  shall  re- 
port his  proceedings  to  the  council  at  such  times  as  may  be 
required.1      [66  v.  205,  §  331.] 

(1)    Section  cited    in    State   ex    rel.  v.  Bryson,  44  O.  S.  457,  469. 


3.  JUDICIAL. 

Sec.  208.  [Police  court.]1  In  every  village  where  a  police 
court  is  now  established  by  law,  whether  by  general  acts  or  by 
acts  designating  the  village  by  grade  or  class  or  otherwise 
said  police  court  shall  continue  to  exercise  all  powers  and  func- 
tions conferred  by  said  general  or  special  acts,  and  shall  be 
known  as  the  police  court  of  the  village  in  which  the  same  now 
exists.2 

(1)  See  notes  to  §  190  of  the  §§  208,  209  and  210  of  the  Code, 
Code,  page  441.  and  not  repealed,  will  be  found  un- 

(2)  Statutes  relating  to  police  der  title  Judicial  in  Part  II. 
and  mayor's  courts,  referred  to  in 


476  the  ohio  municipal  code.       [Code  §§209,  210 

Sec.  209.  [Jurisdiction  thereof;  how  judge,  clerk,  etc.,  chosen.] 
The  police  court  of  each  village  as  heretofore  established  and 
now  existing  shall  have  the  jurisdiction  conferred  in  any 
general  or  special  act  creating  or  governing  the  same,  and  the 
mayor  as  judge  of  said  court  and  the  clerk,  assistant  clerks  and 
all  other  officers  and  employes  of  said  court,  shall  be  elected  or 
appointed  and  shall  continue  to  exercise  their  powers  and  duties 
in  the  manner  provided  in  said  existing  laws.1 

(1)   See  notes  to   §    191   of  the    Code,  page  442. 

Sec.  210.  [Certain  acts  not  repealed.]  All  acts  or  parts  of 
acts  providing  for  such  police  courts,  or  regulating  the  pro- 
cedure therein,  including  an  act  entitled,  "  An  act  to  amend 
section  6565  of  the  Revised  Statutes  of  Ohio,"  passed  April  10, 
1902,  shall  be  and  remain  in  full  force  and  effect.1 

( 1 )   See  note  to  §  192  of  the  Code,  page  443. 


Code  §211]     MISCELLANEOUS.    SAVING    EXISTING    BIGHTS.  477 


MISCELLANEOUS  PROVISIONS 

1.    SAVING  OF  EIGHTS  UNDEE  PEEVIOUS  LAWS. 

Sec.  211.  [Municipalities  created  under  this  act  shall  succeed 
to  all  the  rights  and  liabilities  of  original  municipality ;  new  rem- 
edies are  cumulative;  municipal  boundaries.]1  All  rights  and  prop- 
erty which  are  vested  2  in  any  municipal  corporation  under  its 
former  organization,  shall  be  deemed  vested  in  the  same  mu- 
nicipal corporation  under  the  organization  provided  by  this 
act;  and  no  rights  or  liabilities,  either  in  favor  of  or  against 
such  corporation,  existing  at  the  time  of  the  taking  effect  of 
this  act,  and  no  suit,  prosecution  or  proceeding  shall  be  in 
any  manner  affected  by  such  change,  but  the  same  shall  stand 
or  proceed  as  if  no  such  change  had  been  made ;  provided,  that 
where  a  different  remedy  is  given  in  this  act,  which  can  be 
made  applicable  to  any  rights  existing  at  the  time  it  goes  into 
effect^  such  remedy  shall  be  deemed  cumulative  to  those  al- 
ready provided,  and  may  be  used  accordingly.  The  bounda- 
ries of  all  municipal  corporations  as  now  established  pursuant 
to  any  special  or  general  acts  shall  be  and  remain  as  the  same 
are  now  established,  until  such  time  as  the  same  shall  be 
changed  in  accordance  with  the  provisions  of  this  act. 

(1)  Old  sections  1538  and  ment  were  held  to  constitute  a  pro- 
1539  E.  S.,  repealed,  saving  clauses  ceeding,  and  when  pending  at  the 
under  the  Code  of  1869.  time  the  law  under  which  they  were 

(2)  Vested  rights  and  proper-  taken  was  repealed,  they  remain 
ty  remaining. —  The  steps  leading  valid  as  the  basis  of  assessment  or 
to  an  assessment  for  street  improve-  re-assessment.     Raymond    v.    Cleve- 


478 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §212 


land,  42  O.  S.  522.  Cincinnati  v. 
Seasongood,  46  O.  S.  296. 

Where  a  contract  for  improve- 
ment has  been  made  and  the  work 
commenced  under  an  act  of  the  leg- 
islature, the  right  to  make  an  as- 
sessment to  pay  the  costs  will  not 
be  affected  by  repeal  of  the  act, 
where  there  is  a  saving  clause  such 
as  in  the  above  section.  Corry  v. 
Gaynor,  22  O.  S.  584;  Hubbard  v. 
Norton,  28  O.  S.  116;  and  see 
Goodale  v.  Fennell,  27  0.  S.  426. 

Whether  a  section  such  as  this 
would  have  any  application  to  im- 
provements begun  after  the  act  took 
effect,  see  Toledo  v.  Toledo,  22  B. 
131,  135. 

Municipal  corporations  not  re- 


created.—  The  Code  of  1852  was 
held  not  to  have  annihilated  and  re- 
created pre-existing  municipal  cor- 
porations of  the  State,  but  to  have 
re-organized  and  continued  them, 
leaving  their  corporate  identity  un- 
affected. Fosdick  v.  Perrysburg, 
14  O.  S.  472. 

Under  the  present  Constitution 
the  legislature  can  neither  create  a 
corporation  by  special  act  nor  con- 
fer additional  corporate  power  by 
special  act  on  those  already  existing 
any  more  than  it  can  do  these  things 
in  respect  to  private  corporations. 
State  v.  Cincinnati,  20  O.  S.  18; 
State  v.  Cincinnati,  23  O.  S.  445; 
State  v.  Mitchell,  31  O.  S.  592. 


Sec.  212.     [How  words  of  enactment  or  repeal  to  be  construed.] 

Wherever  existing  statutes  are  expressly  made  to  remain  in 
effect  by  this  act,  whether  by  sectional  numbers  or  by  title, 
division  and  chapter,  such  statutes,  with  all  other  acts  amenda- 
tory thereof  or  supplementary  thereto,  shall  be  of  the  same 
force  and  effect  as  if  fully  set  forth  and  incorporated  herein; 
wherever  existing  statutes  are  expressly  repealed  by  this  act, 
such  repeal  shall  apply  to  all  acts  amendatory  thereof  or  sup- 
plementary thereto;  all  sections,  subsections,  titles,  divisions 
and  chapters  referred  to  in  this  act  shall  be  those  contained  in 
the  third  edition  of  Bates'  Annotated  Ohio  Statutes,  as  ap- 
proved by  the  act  of  April  23,  1902  (95  O.  L.,  241),  and  this 
act  shall  be  a  part  of  title  XII  of  said  statutes.1 


(1)     Construction    of    Code. — 

"  A  code  of  statutes-  relating  to  one 
subject  is  presumed  to  be  governed 
by  one  spirit  and  policy  and  intend- 
ed to  be  consistent  and  harmonious, 
and  all  of  the  several  sections  are 
to  be  considered  in  order  to  arrive 
at  the  meaning  of  any  part,  unless 
a   contrary  intent  is   clearly  mani- 


fest."    Cincinnati  v.   Guckenberger, 
60  O.  S.,  353. 

Effect  of  Codification  and  Re- 
vision.—  The  revision  of  all  stat- 
utes on  a  particular  subject  pre- 
sumably does  not  change  the  con- 
struction of  the  original,  although 
the  language  has  been  changed. 
State  ex  rel.  v.  Shelby  Co.,  36  O.  S. 


Code  §213]     MISCELLANEOUS.    SAVING    EXISTING    EIGHTS.  479 


326;  Allen  v.  Russell,  39  0.  S.  336; 
State  ex  rel.  v.  Auditor,  43  O.  S. 
311,  315;  State  ex  rel.  v.  Stockley, 
45  O.  S.,  304,  308.  But  a  clause 
added  in  a  revision  which  qualifies 
the  former  operation  of  a  statute 
must  be  given  effect.  Collins  v. 
Millen,  57  0.  S.  289.  See  also 
Giffin   v.   Brooks,   3   O.   C.   110. 

Mere  change  in  'phraseology 
in  a  revision  does  not  change  for- 
mer construction  unless  evidently- 
intended.  Ash  v.  Ash,  9  O.  S.  383; 
Tyler  v.  Winslqw*  15  O.  S.  364,  368 ; 
Hamilton  v.  Stbt.  R.  B.  Hamilton, 
16  O.  S.  428,  432;  Stannard  v.  Case, 
40  O.  S.  211,  214;  Conger  v.  Barker, 
11  O.  S.  1;  Boley  v.  Oh.  L.  Ins.  and 
Trust  Co.,  12  O.  S.  139,  144;  Dutoit 
v.  Doyle,  16  O.  S.  400,  405;  Brower 
v.  Hunt,  18  O.  S.  311,  338. 

Amendment  of  act  incorpo- 
rated.— See  Brigel  v.  Starbuck,  34 
O.  S.  280;  Stall  v.  Macalester,  9  O. 
19 ;   Clarke  v.  Thomas,  34  O.  S.  46. 

Repeal  of  act  incorporated. — 
See  Ludlow  v.  Johnston,  3  O.  553. 

Amendatory    and    supplemen- 


tary acts. —  Ham  v.  Kunzi,  56  O. 
S.  531;  Fidelity,  etc.,  Co.  v.  Hahn, 
33  B.  286 ;  Cincinnati  v.  Taft,  63  O. 
S.  141;  State  v.  Commr's,  16  C.  C. 
218    (affirmed  57  O.  S.  661). 

Former  law  invoked  to  remove 
doubt. — State  ex  rel.  v.  Brewster, 
44  O.  S.  249,  252;  Heck  v.  State,  44 
O.  S.  '536,  538. 

Repeals  by  implication. — Where 
a  law  revises  the  entire  subject  mat- 
ter of  a  former  act  and  is  evidently 
a  substitute  for  it,  the  earlier  act 
must  be  regarded  as  repealed  by 
implication.  Shelby  Co.  v.  Frego, 
26  O.  S.  488,  491;  Lorain  Plank 
Road  v.  Cotton,  12  6.  S.  263 ;  Moore 
v.  Vance,  1  O.  1,  10. 

And  where  a  later  statute  flatly 
contradicts  an  earlier  one,  the 
earlier  one  is  repealed  by  implica- 
tion.    Work  v.  Massie,  6  O.  503. 

But  where  the  two  statutes  can 
well  stand  together  there  can  be  no 
repeal  by  implication.  See  State 
v.  Davis,  23  O.  S.  434. 

Repeal  of  repealing  act  does  not 
revive  original  act,  §  78  R.  S. 


Sec.  213.  [Certain  officers  and  employes  shall  continue  to  act 
nntil  displaced  under  provisions  of  this  act.]1  All  officers  elect- 
ed by  the  people  or  appointed  by  any  authority,  and  all  em- 
ployes under  any  boards  or  officers  in  any  municipal  corporation, 
and  all  officers  or  employes  in  any  educational,  charitable, 
benevolent,  penal  or  reformatory  institution  in  any  such  cor- 
poration, now  serving  as  such,  shall  remain  in  their  respective 
offices  and  employments  and  continue  to  perform  the  several 
duties  thereof  under  existing  laws,  and  receive  the  compensa- 
tion therefor  until  their  successors  are  chosen  or  appointed  and 
qualified  or  until  removed  by  the  proper  authority  in  accordance 
with  the  provisions  of  this  act.2 

(1)    Old  section.^- Compare      §  (2)    In   what   cases. —  An     offi- 

1542  R.  S.  repealed.  cer   does   not  hold    over   unless   his 


480 


THE    OHIO    MUNICIPAL     CODE. 


[Code  §  214 


successor  is  provided  for.  McHugh 
v.  Cincinnati,  1  C.  S.  C.  R.  145. 

An  officer  removed  for  misconduct 
does  not  hold  over.  State  ex  rel.  v. 
Hawkins,  44  O.  &  98. 

A  clerk  of  board  of  water  works 
trustees  at  time  of  enactment  of 
new  Code,  would  continue  in  em- 
ployment until  removed  by  board  of 
public  service.  Hutchinson  v.  Lima, 
27  C.  C.  545;  6  C.  C.    (N.  S.)   529. 

Where  a  new  code  creates  a  new 
office,  but  makes  no  provision  for 
filling  it,  it  simply  creates  a  va- 
cancy to  be  filled  until  the  next 
general  election.  State  v.  Cook,  20 
O.  S.  252. 

When  section  applicable. — 
This  general  provision  does  not  con- 
trol, when  specific  provision  is  other- 
wise made,  as  in  case  of  police  and 
fire  departments.  State  ex  rel.  v. 
Hall,  25  C.  C.  361;  2  C.  C.  N.  S.) 
237. 

Character  of  holding, — Where 
an  officer  is  holding  over  there  is  no 
vacancy  during  the  period  of  such 
holding  and  the  incumbent  is  a  de 
jure  officer.  State  ex  rel.  v.  Howe, 
25  O.  S.  588. 


See  also  State  ex  rel.  v.  Killits, 
8  C.  C.  30. 

Officer  continuing  to  act  as  such 
in  good  faith,  though  after  the  of- 
fice is  abolished,  cannot  be  regarded 
as  criminally  usurping  office. 
Kreidler  v.  State,  24  O.  S.  22. 

Salary. — In  the  case  of  an  offi- 
cer whose  duties  were  specific  and 
limited  and  not  continuous  during 
the  year,  the  annual  salary  must 
be  apportioned,  not  by  the  time  of 
service  but  by  the  duties  actually 
performed  and  may  be  wholly 
earned  at  the  time  the  office  was 
abolished.  Ex  parte  Lawrence,  1 
O.  S.  431. 

The  prohibition  against  affecting 
the  salary  of  an  officer  during  his 
existing  term  does  not  apply  to  an 
officer  holding  over.  Woehler  v.  To- 
ledo, 6  B.  282. 

De  facto  governments  of  mu- 
nicipalities prior  to  first  Monday 
in  Mav,  1903,  see  Citizens'  Light  & 
Heat  Co.  v.  Springfield,  47  B.  710; 
Friedman  v.  Cincinnati,  13  Dec.  404; 
Columbus  v.  Federal  Gas  &  Fuel  Co., 
14  Dec.  261  (aff'd  Cir.  Ct.  Mch.  20, 
1904). 


Sec.  214.  [By-laws,  ordinances  and  resolutions  heretofore 
passed  or  adopted  shall  remain  in  force.]1  All  by-laws,  ordinances 
and  resolutions  heretofore  lawfully  passed  or  adopted  by  the 
council,  board  of  legislation  or  other  legislative  body  in  any 
municipal  corporation,  and  not  inconsistent  with  this  act,  shall 
remain  in  force  until  duly  altered  or  repealed.2 


( 1 )  Old  section. —  Compare  old 
§   1543  R.   S.  repealed. 

(2)  Ordinances  continuing  in 
force. —  Only  such  ordinances  would 
continue  in  force,  as,  if  passed  un- 
der the  new  Code,  would  be  author- 
ized by  its  provisions.  See  Neff  v. 
Bates,  25  O.  S.  169;  Hubbard  v. 
Norton,  28  O.  S.  116. 

On  the  other  hand,  an  ordinance 
formerly  passed  but  not  authorized 
by  the  laws  then  in  force  would  not 
be  valid,  even  though  authorized  by 
the  new  Code,  notwithstanding  the 
provision  continuing  in  force  all 
former  ordinances  not  inconsistent 


with  the  new  Code.  Cotter  v.  Doty, 
5  O.  393,  398. 

An  ordinance  that  was  unconsti- 
tutional would,  of  course,  not  be 
continued  in  force.  See  Zanesville 
v.  Auditor,  5   O.   S.  589. 

An  ordinance  fixing  a  salary  would 
continue  in  force,  if  the  authority 
passing  the  ordinance  has  the  power 
under  the  new  Code  and  the  salary 
does  not  exceed  the  maximum  there- 
in provided,  even  though  the  law 
under  which  the  ordinance  was 
passed  is  repealed  by  the  Code. 
Moore  v.  Cincinnati,  26  O.  S.  582. 

An   ordinance  providing   for    the 


Code  §§215,  216]    miscellaneous,  pending  impp/mts.       481 

annexation  of  contiguous  territory,  a  provision  such  as  that  in  the 
not  inconsistent  with  the  new  Code,  above  section.  Croll  v.  Franklin,  40 
was  held  to  continue  in  force,  under      O.  S.  340. 

2.  CERTAIN  ACTS  FOE  PENDING  IMPROVEMENTS. 

Sec.  215.  [Certain  acts  not  to  be  construed  as  altered,  amended 
or  repealed.]  Nothing  in  this  act  shall  be  construed  to  alter, 
repeal  or  amend  an  act  entitled,  "  An  act  to  create  a  board  of 
supervision  in  the  erection  simultaneously  of  public,  municipal 
and  county  buildings,"  passed  May  6,  1902,  or  sections  2435-1, 
2435-2,  2435-3,  2435-4,  2435-5,  2435-6,  2435-7,  2435-9, 
2435-10,  2435-11,  2435-12,  2435-13,  2435-14,  2435-15, 
2435-16,  2435-17  and  2435-18  of  the  Revised  Statutes  of  Ohio,1 
nor  any  other  acts  or  parts  of  acts  authorizing  public  improve- 
ments or  the  enlargement  or  extension  of  waterworks,  in  any 
municipality  by  a  board  of  waterworks  trustees  heretofore  es- 
tablished by  law,  having  authority  to  make  enlargements  and 
extensions  of  waterworks  and  having  such  enlargements  and 
extensions  in  progress  of  construction ;  but  in  all  such  cases 
said  boards  of  supervision  in  the  erection  simultaneously  of 
public  municipal  and  county  buildings,  or  commissioners  of 
waterworks  or  boards  of  waterworks  trustees  shall  continue  in 
office  and  perform  all  of  the  functions  and  duties  and  exercise 
all  of  the  powers  now  possessed  by  them  until  the  completion 
of  such  improvements  in  progress  of  construction,  and  there- 
upon the  works  so  completed  shall  be  turned  over  to  the  ap- 
propriate authority  of  the  municipality.2 

(1)  The  act  and  sections  men-  by  a  general  municipal  Code,  see 
tioned  here  will  be  found  in  Part  State  v.  Davis,  23  O.  S.  434;  Pos- 
II.  dick  v.  Perrysburg,  14  O.  S.  472. 

(2)  Special  acts  not  repealed 

Sec.  216.  [Board  of  supervision  in  the  erection  of  public,  mu- 
nicipal or  county  buildings;  appointment  of  by  board  of  public 
service;  powers  of  such  board.]  Whenever  any  city,  or  the 
county  in  which  the  city  is  located,  has  in  contemplation,  or  in 


482  the  ohio  municipal  code.  [Code  §  216 

process  of  construction,  buildings  for  public,  municipal  or 
county  purposes,  within  the  boundaries  of  such  city,  the  di- 
rector of  public  service  may  provide  for  the  employment  of 
three  persons,  to  be  named  by  them,  of  whom  at  least  two  shall 
be  architects,  and  who  shall  be  employed  at  a  salary  not  ex- 
ceeding five  thousand  ($5,000)  per  annum  each,  to  be 
fixed  by  the  directors  of  public  service,  and  paid  by  the  city 
from  the  general  fund.  Such  persons  shall  have,  under  the 
supervision  of  the  directors  of  public  service,  control  of  the 
location  of  all  public,  municipal  or  county  buildings,  to  be 
erected  upon  the  ground  acquired  within  the  limits  of  the  city, 
and  of  the  size,  height,  style  and  general  appearance  of  such 
buildings  and  all  plans  and  specifications  for  the  erection  of 
the  buildings  aforesaid  shall  be  submitted  for  approval  to  the 
persons  herein  authorized  to  be  employed  and  approved  by  them 
before  they  are  adopted  by  the  authorities  engaged  in  the  con- 
struction thereof; 

[Commission  for  the  erection  of  city  hall;  appointment  of  by 
board  of  public  service.]  provided,  further,  that  whenever 
any  city  has  in  contemplation  or  in  process  of  construction,  or 
furnishing,  a  city  hall,  the  director  of  public  service  may  pro- 
vide for  the  employment  of  five  citizens  of  said  city,  to  be 
named  by  them,  not  more  than  three  of  whom  shall  belong  to 
the  same  political  party,  who  shall  constitute  a  commission 
under  the  supervision  and  directions  of  the  directors  of  public 
service,  for  procuring  the  necessary  land  for  the  construction 
and  furnishing  of  such  city  hall.  Said  commissioners  shall 
have  power,  subject  to  the  approval  of  the  directors  of  public 
service,  to  acquire,  in  the  name  of  the  city,  by  purchase  or 
appropriation,  land  for  city  hall  purposes,  and  shall  have  power 
to  employ  architects,  and  approve  plans  and  specifications. 

[Powers,  duties,  compensation,  organization,  etc.]      They  shall 
make  all  contracts  necessary  for  the  construction  and  furnish- 


Code  §216]     MISCELLANEOUS.    PENDING    IMPROVEMENTS.  483 

ing  of  such  city  hall,  which  contracts  shall  be  in  the  name  of 
the  city,  and  shall  be  made  after  advertisement  and.  bidding, 
as  provided  by  law  for  the  making  of  other  municipal  contracts, 
and  shall  be  subject  to  the  approval  of  the  directors  of  public 
service.  Such  commissioners  shall  select  from  their  number 
a  president,  and  may  appoint  a  clerk,  and  such  other  em- 
ployes as  may  be  necessary,  and,  subject  to  the  approval  of 
the  directors  of  public  service,  fix  their  compensation,  and  shall 
keep  a  full  record  of  their  proceedings.  Such  commissioners 
shall  each  receive  such  sum,  not  exceeding  five  dollars  ($5.00) 
each  per  meeting,  as  the  directors  of  public  service  may  fix, 
which  compensation,  however,  shall  not  in  any  case  exceed 
twelve  hundred  dollars  ($1,200.00)  per  annum  each,  and  the 
compensation,'  of  such  commissioners,  and  expenses  shall  be 
paid  in  like  manner  as  the  cost  of  such  city  hall. 

[Commission  for  erection,  etc.,  of  market  houses,  or  public  halls; 
appointment  of  by  board  of  public  service;  compensation,  etc.]1 

Provided,  further,  that  whenever  any  city  has  in  contemplation 
or  in  process  of  construction,  any  market  house  or  houses,  or 
public  hall  in  connection  therewith,  the  directors  of  public  serv- 
ice may  provide  for  the  employment  of  three  citizens  of  each 
[such]  city,  to  be  named  by  them,  who  shall  constitute  a  com- 
mission, which  shall  have  power,  subject  to  the  approval  of 
the  directors  of  public  service,  to  contract,  in  the  name  of  such 
city,  for  and  supervise  the  building  and  furnishing  of,  any 
market  house  or  houses  or  public  hall  in  connection  therewith, 
for  such  city,  and,  subject  to  the  like  approval,  to  acquire  any 
lands  that  may  be  necessary  for  such  purpose,  either  by  pur- 
chase or  appropriation  in  the  name  of  said  city  in  the  manner 
provided  by  law.  Such  person  so  appointed  shall  receive  such 
compensation,  not  exceeding  five  dollars  ($5.00)  each  for  each 
meeting  attended  by  them  as  the  directors  of  public  service 
may  fix,  which  compensation,  however,  shall  in  no  case  exceed 


484  the  ohio  municipal  code.         [Code  §216 

twelve  hundred  dollars  ($1,200.00)  per  annum  each.  Such 
commission  may  appoint  a  secretary  and  other  necessary  em- 
ployes, and,  subject  to  the  approval  of  the  directors  of  public 
service,  fix  their  compensation,  and  adopt  plans  and  specifica- 
tions for  erecting,  completing  and  furnishing  such  market 
house  or  houses  or  public  hall  in  connection  therewith  in  any 
such  city.  The  compensation  of  such  commissioners  and  ex- 
penses, shall  be  paid  in  like  manner  as  the  cost  of  such  build1 
ings. 

[Persons  appointed  pursuant  to  certain  acts  heretofore  passed 
shall  continue  to  act  until  purposes  of  appointment  are  fulfilled.] 
Provided,  further,  that  any  person  or  persons  heretofore  ap- 
pointed pursuant  to  the  provisions  of  an  act  entitled,  "  An  act 
to  create  a  board  of  supervision  in  the  erection  simultaneously 
of  public,  municipal  and  county  buildings,"  passed  May  6, 
1902  (95  O.  L.,  879)  ,  1  or  of  an  act  entitled  "  An  act  to  au- 
thorize cities  of  the  second  grade  of  the  first  class  to  secure 
the  necessary  lands  and  to  borrow  money  therefor,  and  for 
the  purpose  of  building  and  erecting  thereon  a  city  hall  and 
the  furnishing  of  the  same,"  passed  April  19,  1898  (93  O.  L., 
549),1  and  amended  May  6,  1902  (95  O.  L.,  877),1  or  an  act 
entitled  "  An  act  relating  to  market  houses  in  cities  of  the  sec- 
ond grade  of  the  first  class,"  passed  April  26,  1898  (93  O.  L., 
668 ),*  or  by  whatever  authority  for  the  purpose  provided 
herein,  shall  continue  to  act  for  the  purposes  for  which  he  or 
they  were  appointed,  with  the  power  herein  granted  and  no 
others,  until  the  completion  of  the  improvement  in  connection 
with  which  they  were  appointed,  and  thereupon  the  work  so 
completed  shall  be  turned  over  to  the  proper  authority  of  the 
municipality. 

[Provisions  for  the  payment  of  bonds  issued  for  construction  of 
city  hall.]  Any  city  may  use  or  apply  any  money  re- 
ceived from  any  gas  or  electric    [light]    company  under  any 


Code  §  217]  MISCELLANEOUS.      universities.  485 

agreement  heretofore  or  hereafter  made,  for  the  purpose  of  pay- 
ing interest  or  principal  of  any  bonds  issued  by  such  city  for 
city  hall  purposes;  and  for  the  purpose  of  providing  such 
further  sums  as  may  be  necessary  to  pay  the  interest  on  any 
bonds  for  any  of  the  purposes  herein  named,  and  the  principal 
of  the  same  at  maturity,  the  council  shall,  in  addition  to  the 
other  levies  authorized  by  law,  levy  annually  a  sufficient  tax 
therefor  on  all  property  of  the  city  subject  to  taxation,  and  such 
taxes  shall  be  levied  and  collected  as  other  taxes. 

[Contracts  and  bonds  heretofore  made  or  issued  for  purposes 
kerein  authorized  declared  valid  obligations;  additional  bonds  au- 
thorized.] All  contracts  heretofore  entered  into  by  any  city 
for  the  purposes  herein  specified  and  all  bonds  heretofore  is- 
sued and  sold  by  any  city  for  any  such  purposes,  shall  be  and 
remain  valid,  legal  and  binding  obligations  of  such  city,  and 
all  funds  remaining  from  the  sale  of  any  such  bonds  shall  be 
applied  only  for  the  purpose  for  which  such  bonds  were  sold; 
and  any  such  city  shall  have  power  to  issue  and  sell  such  addi- 
tional bonds  as  may  be  necessary,  up  to  the  limit  named  in 
said  acts,  or  any  of  them,  for  the  purposes  herein  named.2 
[April  27,  1904,  97  v.  517.] 

(1)   Constitutionality.    —   The  (2)    These  acts  will  be  found  in 

paragraph  continuing  the  Cleveland  Part  II. 

Market  House  commission  held  un-  Amendments    of    1904. — Orig- 

constitutional.     Slatmyer  v.  Spring-  inal    section    216   of   the    Code   was 

born,  26  C.  C.  100;  5  C.  C.   (N.  S.)  first  amended  April  23,  1904,  97  O. 

89   (aff'd  72  0.  S.  683).  L.  255.     An  act  approved  April  27, 

Members  cannot  act  under  the  1904,  97  O.  S.  517,  again  amended 

new   law.      The    control    of   market  the  same  section,  without  any  refer- 

houses    is   in   board    of   public   ser-  ence    to    the    previous    amendment, 

vice.     lb.  The  text  above  follows  the  later  act. 

3.    MUNICIPAL  mSTIVEKSlTIES. 
Sec.  217.     [Administration,    management,    etc.,    of    municipal 
university  and  property  thereof  to  be  under  board  of  directors  ap- 
pointed by  the  mayor.]1     In  any  municipal  corporation  having 
a  university  supported  in  whole  or  in  part  by  municipal  taxa- 


486  the  ohio  municipal  code.         [Code  §217 

tion  all  the  authority,  powers  and  control  vested  in  or  belonging 
to  said  corporation  with  respect  to  the  management  of  the  es- 
tate, property  and  funds  given,  transferred,  covenanted  or 
pledged  to  said  corporation  in  trust  or  otherwise  for  such  uni- 
versity, as  well  as  the  government,  conduct  and  control  of  such 
university  shall  be  vested  in  and  exercised  by  a  board  of  di- 
rectors consisting  of  nine  electors  of  said  municipal  corporation, 
who  shall  be  appointed  by  the  mayor  of  such  municipal  corpo- 
ration, three  for  a  term  of  two  years,  three  for  a  term  of  four 
years  and  three  for  a  term  of  six  years;  and  thereafter  as  the 
terms  expire  the  mayor  of  such  municipal  corporation  shall 
appoint  three  directors  for  a  term  of  six  years  3ach  and  shall 
fill  all  vacancies  in  said  board.  Such  board  of  directors  shall 
be  known  as  "  The  Board  of  Directors  of  — ' — ' Univer- 
sity "  (filling  out  blank  with  the  name  of  the  university). 

[Powers  and  duties  of  such  board.]  They  shall  serve  without 
compensation  and  shall  have  all  the  powers  and  perform  all  the 
duties  now  and  hereafter  conferred  or  required  by  law  in  the 
government  of  said  university,  and  the  execution  of  any  trust 
with  respect  thereto  imposed  upon  the  municipal  corporation; 
and  all  acts  or  parts  of  acts  not  inconsistent  herewith  which 
govern  such  universities  shall  be  and  remain  in  full  force  and 
effect  and  sections  4095,  4096,  4097,  4099,  4100,  4101,  4102. 
4103  and  4104  of  the  Revised  Statutes  of  Ohio,  as  amended 
May  12,  1902,  shall  remain  in  full  force  and  effect.2 

( 1 )    Old  sections. —  Section  4098  expressly  repealed  by  the  Code,  but 

R.  S.  provided  for  a  board  of  direct-  since    the    above    §    217    covers    the 

ors    of    nineteen    members    for    the  subject    matter    of    both    and    was 

management    of    trusts    for    educa-  clearly    meant    to    supersede    them, 

tional  purposes  and  universities  in  they  must  be  regarded  as  repealed 

municipalities,    and    §    4098-1    pro-  by  implication.     See  note  to  §  212 

vided   for    the    appointment   of   the  of  the  Code,  p.  478. 
board    of    directors    of    universities  (2)   Amendments     of     1904. — 

in  cities  of  the  first  grade  of  the  first  The    sections    here    mentioned    were 

class    (Cincinnati)    by  the  Superior  again    amended   May    3,    1904,    and 

Court.     These  two  sections  are  hot  are  given  as  last  amended. 


Code  §  217]  MISCELLANEOUS.        UNIVERSITIES. 


486a 


Section  4105  R.  S.  was  neither 
re-enacted  nor  repealed  by  the  Code. 
This  section  as  it  stood  at  the  time 
the  Code  went  into  effect  was  a  spe- 
cial act  applying  to  Toledo  alone 
and  was  probably  repealed  by  impli- 
cation. As  amended  in  1904,  how- 
ever, this  section  is  a  general  act. 
It  is  therefore  carried  in  this  edi- 
tion of  the  Code  and  will  be  found 
in  the  miscellaneous  statutes  in 
Part  II.,  p.  844. 

Validity,— The  §§  4095  to  4104 
inclusive  (as  written  before  amend- 
ments of  1904),  providing  for  the 
acceptance  by  certain  cities  of  trust 
unds  for  educational  purposes,  were 
neld  not  unconstitutional  for  want 
of  corporate  capacity  on  the  part  of 
the  municipalities  to  receive  and 
execute  the  trust  nor  because  the 
acts  were  special.  State  ex  rel.  v. 
Toledo,  3  C.  C.  (N.  S.)  468,  23  C. 
C.  327 ;  and  see  also  Perin  v.  Carey, 
65  U.  S.  465. 

Nor  is  a  tax  levy  to  aid  such  in- 
stitutions as  here  provided  for,  un- 
constitutional. State  ex  rel.  v.  To- 
ledo, 23  C.  C.  327. 


Character  of  board. — A  board 
of  trustees  such  as  provided  for  in 
these  sections,  is  a  legal  board 
vested  with  certain  powers,  but  is 
not  a  corporation.  lb.;  see  also 
State  v.  Powers,  38  O.  S.  54. 

Actions     against    board. — Quo 

icarranto  will  not  lie  to  oust  the 
members  of  such  board  because  they 
exceed  their  pqwers  in  extending  the 
course  of  instruction.  Injunction 
would  be  the  proper  remedy,  and 
courts  of  equity  would  have  juris- 
diction in  such  cases.  State  ex  rel. 
v.  Toledo,  3  C.  C.  (N.  S.)  468,  23 
C.  C.  327. 

University. — The  word  "univer- 
sity" in  Sec.  217  must  be  construed 
according  to  the  legislative  intent 
and  not  in  its  strict,  technical 
sense,  in  construing  gifts  to  a  "uni- 
versity." Waddick  v.  Merrell,  26 
C.  C.  437. 

Erection  of  dwelling  for  president 
of  university,  held  a  proper  appli- 
cation of  university  funds  derived 
from  taxation.  Cincinnati  v.  Jones, 
28  C.  C.  210. 


Sec.  4095  R.  S.  [Board  of  directors  of  educational  institution 
may  accept  educational  trusts.]  The  board  of  directors  of  the 
university,  college  or  other  educational  institution  of  any 
municipal  corporation,  in  the  name  and  on  behalf  of  such  cor- 
poration, may  accept  and  take  any  property  or  funds  hereto- 
fore or  hereafter  given  to  such  corporation  for  the  purpose  of 
founding,  maintaining  or  aiding  a  university,  college  or  institu- 
tion for  the  promotion  of  education,  and  upon  such  terms,  con- 
ditions and  trusts  not  inconsistent  with  law  as  the  said  board 
of  directors  may  deem  expedient  and  proper  for  that  end. 
[1904,  May  3,  97  v.  541;  92  v.  358;  67  v.  86.] 

Sec.  4096  R.  S.  [How  trust  funds  to  be  applied.]  For  the 
further  endowment,  maintenance  and  aid  of  any  such  univer- 
sity, college  or  institution  heretofore  or  hereafter  founded,  the 


487  the  ohio  municipal  code.         [Code  §  217 

board  of  directors  thereof  may,  in  the  name  and  in  behalf  of 
such  municipal  corporation,  accept  and  take  as  trustee  and  in 
trust  for  the  purposes  aforesaid  any  estate,  property  or  funds 
which  may  have  been  or  may  be  lawfully  transferred  to  the 
municipal  corporation  for  such  use  by  any  person,  persons  or 
body  corporate  having  the  same,  or  any  annuity  or  endowment 
in  the  nature  of  income  which  may  be  covenanted  or  pledged 
to  the  municipal  corporation,  towards  such  use  by  any  person, 
persons  or  body  corporate ;  and  any  person,  persons  or  body  cor- 
porate having  and  holding  any  estate,  property  or  funds  in  trust 
or  applicable  for  the  promotion  of  education,  or  the  advance- 
ment of  any  of  the  arts  or  sciences,  may  convey,  assign  and 
deliver  the  same  to  such  municipal  corporation  as  trustee  in 
his,  their  or  its  place,  or  covenant  or  pledge  its  income  or  any 
part  thereof  to  the  same ;  and  any  such  estate,  property,  funds 
or  income  shall  be  held  and  applied  by  such  municipal  corpora- 
tion in  trust  for  the  further  endowment,  maintenance  and  aid 
of  such  university,  college  or  institution,  in  accordance  never- 
theless with  the  terms  and  true  intent  of  any  trust  or  condition 
upon  which  the  same  was  originally  given  or  held.1  [1904, 
May  3,  97  v.  541 ;  92  v.  358 ;  67  v.  86.] 


(1)    Terms  of  donations. —  The  donation,  if  the  terms  under  which 

directors  of  an  institution  of  learn-  it  is  offered  are  not  acceptable,  but 

ing  are  at  liberty  under  §  4096,  re-  donations  which  are  accepted  must 

lating   to    trust   funds   for   the    en-  be  accepted  in  accordance  with  the 

dowment,    maintenance   and    aid    of  terms   prescribed.     State   ex   rel.   v. 

such    schools,   to   reject  a   proposed  Schauss,  3  C.  C.  (N.  S.)  388. 


Sec.  4097  R.  S.  [Trusteeship  to  vest  in  city,  etc.]  Upon  such 
transfer  and  the  acceptance  thereof  by  the  municipal  corpora- 
tion and  its  successors,  as  trustees  shall  become  and  be  per- 
petually obligated  and  held  to  observe  and  execute  such  trust 
in  all  respects  according  to  any  other  or  further  terms  or  con- 
ditions lawfully  agreed  upon  at  the  time  of  such  transfer  and 


Code    §    217]        MISCELLANEOUS.       UNIVERSITIES.  488 

acceptance;  and  any  court  having  jurisdiction  of  the  appoint- 
ment of  trustees  of  such  trust  for  educational  purposes,  may, 
in  a  proceeding  for  that  purpose  duly  instituted  and  had,  ap- 
point and  constitute  such  municipal  corporation  with  the  con- 
sent of  its  council,  trustee  of  the  estate,  property  and  funds 
so  transferred  to  it,  and  may  dispense  with  bond  and  surety 
upon  the  part  of  the  municipal  corporation  for  the  perform- 
ance of  such  trust,  unless  the  same  is  required  by  the  original 
terms  or  conditions  thereof,  and  shall  upon  the  due  transfer 
and  acceptance  of  such  trust  by  the  municipal  corporation, 
release'  and  fully  discharge  the  trustee,  or  trustes  so  trans- 
ferring the  same;  and  any  acceptance  or  acceptances  by  such 
municipal  corporation  of  any  or  all  property,  funds,  rights, 
trust  estate  or  trusts  heretofore  given,  granted,  assigned,  or 
otherwise  conveyed  or  transferred  to,  or  bestowed  upon  any 
such  municipal  corporation  or  to  or  upon  any  such  university, 
college  or  institution  in  good  faith,  and  which  are  still  held 
and  retained  by  such  municipal  corporation,  or  any  such  uni- 
versity, college  or  institution,  shall  be  held  and  deemed  to  be 
valid  and  binding  as  to  all  parties.  [1904,  May  3,  97  v.  542 ; 
67  v.  86.] 

Sec.  4099  R.  S.  [Powers  of  board  of  directors.]  As  to  all 
matters  not  herein  or  otherwise  provided  by  law,  such  board 
of  directors  shall  have  all  the  authority,  power  and  control 
vested  in  or  belonging  to  such  municipal  corporation  as  to  the 
management  and  control  of  the  estate,  property  and  funds, 
given,  transferred,  covenanted  or  pledged  to  the  municipal 
corporation  for  the  trusts  and  purposes  aforesaid,  and  the  gov- 
ernment, conduct  and  control  of  such  university,  college  or  in- 
stitution ;  it  may  appoint  a  clerk  and  all  agents  proper  and 
necessary  for  the  care  and  administration  of  the  trust  property, 
and  the  collection  of  the  income,  rents  and  profits  thereof;  it 
may  appoint  the  president,  professors,  tutors,  instructors,  agents 
and  servants  necessary  and  proper  for  such  university,  college 
or  institution,  and  fix  their  compensation;  it  may  provide  all 
the  necessary  buildings,  books,  apparatus,  means  and  appli- 
ances, and  may  pass  all  such  by-laws,  rules  and  regulations  con- 
cerning the  president,  professors,  tutors,  instructors,  agents, 
and  servants,   and  the  admission,  government  and  tuition  of 


489  the  ohio  municipal  code.         [Code  §  217 

students,  as  it  may  deem  wise  and  proper,  and  it  may,  by  suit- 
able by-laws,  delegate  and  commit  the  admission,  government, 
management  and  control  of  the  students,  courses  of  studies,  dis- 
cipline and  other  internal  affairs  of  such  university,  college  or 
institution,  to  a  faculty  which  the  board  of  directors  may  ap- 
point from  among  the  professors.1 

The  solicitor  of  such  municipal  corporation  shall,  when- 
ever requested  so  to  do  by  resolution  of  said  board,  prosecute 
and  defend,  as  the  case  may  be,  for  and  in  behalf  of  the  cor- 
poration, all  complaints,  suits  and  controversies  in  which  the 
corporation  or  such  board  is  a  party,  and  which  relate  to  any 
property,  funds,  trusts,  rights,  claims,  estate  or  affairs,  which 
shall  or  may  be  under  the  control  or  direction  of  said  board, 
or  which  shall,  in  any  manner,  relate  to  the  conduct  or  govern- 
ment of  such  university,  college  or  institution.  [1904,  May  3, 
97  v.  542;  67  v.  86.] 


(1)    Discretion  of  board  in  man-  wise  policy  is  being  pursued.     State 

agement    of    affairs    of    institution,  ex  rel.  v.  Schauss,  3  C.  C.    (N.  S.) 

cannot   be    interfered    with    by    the  388. 
courts,  on  the  ground  that  an  un- 


Sec.  4100  E.  S.  [Citizens  not  to  be  charged  for  admission  of 
children.]  Citizens  of  such  municipality  shall  not  be  charged 
for  instruction  in  the  academic  department,  except  in  profes- 
sional courses  therein.  Such  board  of  directors  may  charge 
fees  to  students  in  other  departments  and  to  students  in  pro- 
fessional courses  in  the  academic  department,  and  shall  have 
power  in  its  direction  [discretion]  from  time  to  time  to  make 
such  university,  college  or  institution  free  in  any  or  all  of  its 
departments  to  citizens  of  such  county  in  which  such  university, 
college  or  institution  may  be  located.  The  board  of  directors 
may  in  their  discretion  receive  other  students  on  such  terms 
as  to  tuition  or  otherwise  as  they  may  see  fit.  [1904,  May  3, 
97  v.  543;  92  v.  359;  66  v.  86.] 

Sec.  4101  E.  S.  [Account  of  receipts  and  expenditures  of  en- 
dowment fund;  how  said  fund  may  be  invested.]  The  accounts 
of  such  trust  estate,  property  and  funds,  and  of  the  income 
and  expenditure  thereof,  shall  be  kept  by  the  auditor  of  such 


Code    §     217]  MISCELLANEOUS.       UNIVERSITIES.  490 

municipal  corporation  entirely  distinct  from  all  other  accounts 
or  affairs  of  the  municipal  corporation,  and  the  moneys  shall 
be  kept  by  the  treasurer  of  the  municipal  corporation  distinct 
from  other  moneys.  And  the  said  board  of  directors  shall, 
at  all  times,  confine  their  disbursements  for  current  expenses 
within  the  income  of  the  trust,  estate,  property  and  funds,  and 
shall  annually  report  to  the  mayor  and  council  of  such  munici- 
pal corporation  a  full  statement  of  the  accounts  of  administra- 
tion of  such  trust  and  other  funds ;  and  said  board  of  directors 
is  hereby  authorized  to  invest  any  part  of  the  funds  belonging 
to,  or  set  apart  for  the  use  of  such  university,  college  or  institu- 
tion, or  to  any  department  thereof,  as  it  may,  from  time  to 
time,  deem  proper,  in  bonds  of  the  United  States  or  of  the 
State  of  Ohio,  or  of  any  municipal  corporation  in  the  State  of 
Ohio,  or  any  county  or  school  district  in  the  State  of  Ohio,  or 
in  any  other  bonds  or  first  mortgage  securities  approved  by  the 
board  of  directors;  and  said  board  is  further  authorized  to 
use  any  funds  under  its  control  for  the  improvement  of  real 
estate  belonging  to,  or  set  apart  for  the  use  of,  such  university, 
college  or  institution.  [1904,  May  3,  97  v.  543;  80  v.  86;  67 
v.  86.] 

Sec.  4102  R.  S.  [When  board  may  confer  degrees.]  The  board 
of  directors  of  such  university,  college  or  institution,  may, 
upon  the  recommendation  of*  the  faculty  thereof,  confer  such 
degrees  and  honors  as  are  customary  in  universities  and  colleges 
in  the  United  States,  and  such  others  as  with  reference  to  the 
course  of  studies  and  attainments  of  the  graduates  in  special 
departments  it  may  deem  proper. 

A  university  supported  in  whole  or  in  part  by  municipal 
taxation,  is  hereby  defined  as  an  assemblage  of  colleges  united 
under  one  organization  or  management,  affording  instruction 
in  the  arts,  sciences  and  the  learned  professions,  and  conferring 
degrees.      [1904,  May  3,  97  v.  544;  67  v.  86.] 

Sec.  4103  R.  S.  [Council  may  provide  site  for  municipal  uni- 
versity.] The  council  of  any  such  municipal  corporation  may 
set  apart,  or  appropriate  as  a  site  for  the  buildings  and  grounds 
of  any  such  university,  college  or  institution,  any  public  grounds 
of  the  city  not  especially  appropriated  or  dedicated  by  ordinance 


490a  the  ohio  municipal  code.         [Code  §  217 

to  any  other  use,  any  other  law  to  the  contrary  notwithstanding ; 
and  the  board  of  education  of  any  such  municipal  corporation 
may  also,  for  a  like  purpose,  set  apart,  convey  or  lease  for  a 
term  of  years,  any  grounds  or  building  owned  or  controlled  by 
such  board  of  education.  Any  grant  for  the  use  of  such 
grounds  or  buildings  heretofore  or  hereafter  made  by  any  coun- 
cil or  board  of  education,  may  be  modified,  changed  or  extended 
as  to  the  time  when  the  same  shall  take  effect  and  be  in  force, 
or  otherwise,  by  agreement  between  said  council,  or  board  of  edu- 
cation, and  the  board  of  directors  of  such  university,  college 
or  institution,  and  said  council  shall  be  taken  and  held  to  be 
the  representative  of  such  municipal  corporation  vested  with 
the  title,  right  of  possession  and  entire  control  of  such  property 
for  the  purposes  of  a  new  grant.1  [1904,  May  23,  97  v.  544; 
89  v.  251;  82  v.  121;  67  v.  86.] 

(1)   Control  of  grounds  granted  741,  1.  N.  P.  (N.  S)  105.    Enclosure 

by  municipality  for  university  pur-  of  athletic  field  held  a  proper  use  of 

poses    vests    in    university    trustees.  university  grounds.    lb. 
University    v.    Cincinnati,    13    Dec. 

Sec.  4104  R.  S.     [When  and  how  tax  to  be  levied.]     The 

council  may  assess  and  levy  annually  taxes  on  all  the  taxable 
property  of  such  municipal  corporation  to  the  amount  of  five- 
tenths  of  one  mill  on  the  dollar  valuation  thereof,  to  be  applied 
by  said  board  to  the  support  of  such  university,  college  or  in- 
stitution, and  may  also  levy  and  assess  annually  five  one-hun- 
dredths  of  one  mill  on  the  dollar  valuation  thereof,  for  the  es- 
tablishment and  maintenance  of  an  astronomical  observatory, 
or  for  other  scientific  purposes,  to  be  determined  by  the  board 
of  directors  and  to  be  used  in  connection  with  such  university, 
college  or  institution,  the  proceeds  of  which  shall  be  applied 
by  the  board  of  directors  for  such  purposes  exclusively; 
provided,  however,  that  the  taxes  specified  in  this  section 
shall  only  be  levied  and  assessed  when  the  chief  work  of  such 
university,  college  or  institution  is  the  maintenance  of  courses 
of  instruction,  in  advance  of,  or  supplementary  to,  the  instruc- 
tion authorized  to  be  maintained  in  high  schools  by  boards  of 
education.  Said  levies  shall  be  made  by  council  at  the  same 
time,  and  in  the  same  manner  as  other  levies  for  other  munici- 
pal purposes,  and  shall  be  certified  by  council  and  placed  upon 
the  tax  duplicate  in  the  same  manner  as  other  municipal  levies. 
The  funds  of  any  such  university,  college  or  institution  shall  be 
paid  out  by  the  treasurer  upon  the  order  of  the  board  of  direc- 
tors and  the  warrant  of  the  auditor.  [1906,  April  11,  98  v.  129; 
97  v.  544;  95  v.  548;  94  v.  399;  90  v.  150;  67  v.  86;  75  v.  133.] 


Code  §   218 j      miscellaneous.      HHftAfrrag.  491 

4.  MUNICIPAL  LIBEAEIES  AND  TKUSTEES. 

Sec.  218.  [Administration,  erection,  equipment,  etc.,  of  free 
public  municipal  libraries  to  be  placed  under  board  of  trustees 
appointed   by   the   mayor;   powers   and   duties   of   such   board.] 

The  custody,  control  and  administration,  together  with  the 
erection  and  equipment,  of  free  public  libraries  established  by 
municipal  corporations,1  shall  be  vested  in  six  trustees,  not 
more  than  three  of  whom  shall  belong  to  the  same  political 
party,  and  not  more  than  three  of  whom  shall  be  women,  who 
shall  be  appointed  by  the  mayor  to  serve  without  compensa- 
tion for  a  term  of  four  years  and  until  their  successors  are 
appointed  and  qualified;  provided,  however,  that  in  the  first 
instance  three  of  such  trustees  shall  be  appointed  for  a  term  of 
two  years,. and  three  thereof  for  a  term  of  four  years,  and  all 
vacancies  shall  be  filled  by  like  appointment  for  the  unexpired 
term.  Said  trustees  shall  employ  the  librarians  and  necessary 
assistants,  fix  their  compensation,  adopt  the  necessary  by-laws 
and  regulations  for  the  protection  and  government  of  the  li- 
braries and  all  property  belonging  thereto,  and  exercise  all  the 
powers  and  duties  connected  with  and  incident  to  the  govern- 
ment, operation  and  maintenance  thereof.  It  shall  require  four 
of  said  trustees  to  constitute  a  quorum  and  four  votes  to  pass 
any  measure  or  authorize  any  act,  which  votes  shall  be  taken 
by  the  yeas  and  nays  and  entered  on  the  record  of  proceedings 
of  [said]  trustees,  and  in  the  making  of  contracts  said  trustees 
shall  be  governed  by  the  provisions  of  law  applicable  thereto. 

[Women  may  be  members  of  such  board  if  qualified.]  Every 
woman  born  or  naturalized  in  the  United  States,  of  the  age 
of  twenty-one  (21)  years  and  upward,  who  shall  have  been  a 
resident  of  the  state  at  least  one  year,  and  of  the  city  or  village 
in  which  any  such  library  may  be  established,  for  the  period 
of  thirty  days,  shall  be  qualified  to  be  appointed  and  serve  as 
such  trustee. 


492  the  ohio  municipal  code.  [Code  §  218a 

[City  council  authorized  to  levy  tax  to  compensate  private  com- 
pany for  maintaining  free  public  library.]  The  council  of  each 
city  shall  have  power  to  levy  and  collect  a  tax  not  exceeding 
one  mill  on  each  dollar  of  the  taxable  property  of  the  municipal- 
ity, annually,  and  to  pay  the  same  to  a  private  corporation  or 
association  maintaining  and  furnishing  a  free  public  library 
for  the  benefit  of  the  inhabitants  of  the  municipality  as  and 
for  compensation  for  the  use  and  maintenance  of  the  same  and 
without  change  or  interference  in  the  organization  of  such  cor- 
poration or  association,  requiring  the  treasurer  of  such  corpora- 
tion or  association  to  make  an  annual  financial  report,  setting 
forth  all  the  money  and  property  which  has  come  into  its  hands 
during  the  preceding  year,  and  its  disposition  of  the  same,  to- 
gether with  any  recommendation  as  to  its  future,  necessities. 
[1904,  March  15,  97  v.  34.] 

(1)  Power  to  establish  and  Power  to  issue  bonds  by  libra- 
maintain  free  public  libraries  is  ry  boards,  see  "An  act  to  provide 
given  to  all  municipalities  in  para-  for  the  erection  and  equipment  of 
graph  22  of  §  7  of  the  Code,  page  public  library  buildings,"  98  O.  L. 
01.  260. 

5.  TAX  AUTHORIZED  FOR  USE  OF  ART  GALLERY. 

Sec.  218a.  [City  council  authorized  to  levy  tax  to  compen- 
sate private  company  for  maintaining  free  art  gallery.]     The 

council  of  each  city  shall  have  power  to  levy  and  collect  a  tax 
not  exceeding  one-quarter  of  one  mill  on  each  dollar  of  the 
taxable  property  of  the  municipality,  annually,  and  to  pay 
the  same  to  a  private  corporation  or  association  maintaining 
and  furnishing  a  free  museum  or  gallery  for  the  exhibition  of 
paintings,  sculpture  and  other  works  of  art,  and,  in  connection 
therewith,  an  academy  for  advancing,  improving  and  promot- 
ing painting,  sculpture,  drawing,  architecture  and  other  line 


Code  §  219]  MISCELLANEOUS.       HOSPITALS.  492a 

arts,  and  furnishing  instruction  therein  by  lectures  and  other- 
wise, for  the  benefit  of  the  inhabitants  of  the  municipality  as 
and  for  compensation  for  the  use  and  maintenance  of  the  same, 
and  without  change  or  interference  in  the  organization  of 
such  corporation  or  association,  requiring  the  treasurer  of  such 
corporation  or  association  to  make  an  annual  financial  report, 
setting  forth  all  the  money  and  property  which  has  come  into 
its  hands  during  the  preceding  year,  and  its  disposition  of  the 
same,  together  with  any  recommendation  as  to  future  neces- 
sities.    [1906,  April  14,  98  v.  146.] 

6.     TAX  AUTHORIZED  FOR  USE   OF  HOSPITAL. 

Sec.  219.     [City  council  authorized  to  levy  tax  to  compen- 
sate private  company  for  maintaining  free  public  hospital.] 

The  city  council  of  each  city  shall  have  power  to  levy  and  col- 
lect a  tax  not  exceeding  one  mill  on  each  dollar  of  the  taxable 
property  of  the  municipality,  annually,  and  to  pay  the  same  to 
a  private  corporation  or  association  maintaining  and  furnish- 
ing a  free  public  hospital  for  the  benefit  of  the  inhabitants  of 
the  municipality,  or  to  private  corporation  or  association  main- 
taining a  public  hospital,  not  free  except  to  such  inhabitants 
of  the  municipality  as  are  in  the  opinion  of  a  majorit}'  of  the 
trustees  of  such  hospital  unable  to  pay,  as  and  for  compensa- 
tion for  the  use  and  maintenance  of  the  same  and  without 
change  or  interference  in  the  organization  of  such  corporation 
or  association,  requiring  the  treasurer  of  such  corporation  or 
association  to  make  an  annual  financial  report,  setting  forth 
all  the  money  and  property  which  has  come  into  its  hands  dur- 
ing the  preceding  year  and  its  disposition  of  the  same,  to- 
gether with  any  recommendation  as  to  its  future  necessities. 
11906,  April  11,  98  v.  123.] 


493  the  ohio   municipal   code.  [Code  §  220 

(1)     Power    to    establish    and  their  support  by  §§  32  and  33  of 

maintain      municipal      hospitals,  the     Code,     pages     157     and     158. 

as  distinguished  from  the  hospitals  City  hospitals  are  under  the  control 

referred  to  in  the  above  section,  is  of    the     board    of    public     service, 

conferred    upon    all    cities   and   vil-  (§  141  of  the  Code)  and  village  hos- 

lages  by  paragraph  16  of  §  7  of  the  pitals  are  under  the  control  of  coun- 

Code,  page  55,  and  to  levy  taxes  for  cil.      (§  204  of  the  Code.) 

T.  PAKKS  AND  HOSPITALS  FOUNDED  BY  GIFT. 

Sec.  220.  [Management  and  administration  of  property  or 
funds  to  be  used  for  park  or  hospital  purposes;  in  certain  cases 
such  property  or  fund  to  be  managed,  administered,  etc.,  by  board 
of  trustees  to  be  appointed  by  sinking  fund  trustees.]  In  any 
municipal  corporation  which  has  become  or  may  hereafter  be- 
come the  owner  or  trustee  of  property  for  any  park  or  hospital 
purposes,  or  of  funds  to  be  used  in  connection  therewith,  by 
deed  of  gift,  devise  or  bequest,  said  property  or  funds  shall  be 
managed  and  administered  in  accordance  with  the  provisions 
or  conditions  of  said  deed  of  gift,  devise  or  bequest,  provided 
that  in  all  cases  where  such  deed  of  gift,  devise  or  bequest  rer 
quires  the  investment,  or  change  of  investment  of  the  principal 
of  said  property  or  funds,  or  any  part  thereof,  to  be  made  upon 
the  approval  of  any  advisory  committee  appointed  by  any 
court  or  judge,  then  such  property  or  funds,  secured  by  deed 
of  gift,  devise  or  bequest,  for  any  such  purposes,  and  any  hos- 
pital or  park  property  for  the  care  or  management  of  which 
in  whole  or  in  part,  said  fund  is  used,  shall  be  managed,  con- 
trolled and  administered,  the  park  funds  and  property  by  a 
board  of  park  trustees,  and  the  hospital  funds  and  property  by 
a  board  of  hospital  trustees,  each  board  consisting  of  four  resi- 
dent electors  of  said  municipal  corporation  who  shall  be  ap- 
pointed by  the  sinking  fund  trustees  of  said  municipal  corpora- 
tion and  shall  serve,  without  compensation  for  the  term  of  four 
years  and  until  their  successors  are  appointed  and  qualified. 
Said  trustees  shall  be  appointed  in  the  first  instance  to  serve 
for  one,  two,  three  and  four  years  respectively,  and  thereafter 
their  successors  shall  be  appointed  one  each  year  to  serve  for 


Code  §  220]     miscellaneous,    endowed,  parks,  etc.  494 

the  term  of  four  years,  provided,  however,  that  of  the  four 
trustees  so  appointed  not  more  than  two  shall  be  of  the  same 
political  party.  In  case  of  vacancy  by  death,  resignation  or 
otherwise  in  such  board  of  trustees,  the  same  shall  be  filled  in 
like  manner  for  the  remainder  of  the  term.  Said  board  of 
trustees  shall  have  the  right  to  apply,  control  and  invest  and 
reinvest  the  funds  coming  or  arising  from  such  gift,  devise  or 
bequest  according  to  the  terms  and  conditions  on  which  ac- 
quired; and  shall  respectively  be  the  successors  of  any  board 
or  officers  now  having  control  or  management  of  any  such 
property  or  funds  herein  described,  and  said  funds  or  other 
property  then  held  and  controlled  by  any  theretofore  existing 
park  or  hospital  board,  and  the  duties  vested  in  or  imposed 
upon  such  boards  or  officers  shall  be  transferred  to  the  trustees 
herein  provided.  Such  park  board  herein  provided  for  shall 
be  governed  by  the  provisions  of  sections  2515-39,  2515-40,. 
2515-41,  2515-42,  2515-43,  2515-44,  2515-45,  2515-45e, 
2515-45/,  2515-450,  2515-457&,  2515-45^  2515-45;  and 
2515-45&  of  the  Revised  Statutes  of  Ohio,  and  such  hospital 
board  herein  provided  for  shall  be  governed  by  the  provisions 
of  sections  2167-9,  2167-10,  2167-11,  2167-12,  2167-13, 
2167-14,  2167-15,  2167-16,  2167-17,  2167-18,  2167-19, 
2167-20,  and  2167-21,  of  the  Revised  Statutes  of  Ohio. 

Sec.  2515— 39  R.  S.     [Compensation;  oath;  bond.]     §  3.    The 

members  of  said  board  of  park  commissioners  shall  serve  with- 
out compensation,  and  before  entering  upon  the  discharge  of 
their  duties  shall  each  take  the  oath  of  office  prescribed  by  law, 
and  shall  give  bond  in  the  sum  of  twenty-five  hundred  ($2,500) 
dollars,  conditioned  according  to  law,  and  to  the  approval  of  the 
mayor  and  council  of  such  city.      [93  v.  463.] 

Sec.  2515 — 40  R.  S.  [Meetings;  rules  and  regulations;  record; 
passage  of  resolution  or  order;  quorum;  clerk.]  §  4.  Such  board 
of  park  commissioners  shall  hold  meetings  at  least  once  a 
month,  and  shall  adopt  all  necessary  rules  for  the  regulation 
of  its  business ;  it  shall  keep  a  complete  record  of  all  its  pro- 
ceedings, which  record,  or  a  copy  thereof,  duly  certified  by  the 
clerk  of  said  board,  shall  be  competent  evidence  of  the  transac- 
tions of  said  board  in  all  the  courts  of  this  state;  the  ayes  and 


495  the  ohio   municipal   code.  [Code  §  220 

nays  shall  be  called  upon  the  passage  of  every  resolution  oi 
order;  three  members  of  the  board  shall  constitute  a  quorum 
for  the  transaction  of  all  business,  but  no  resolution  or  order 

shall  be  adopted  unless  three  members  shall  vote  in  its  favor. 
The  city  clerk  shall  act  as  the  clerk  of  such  board  of  park  com- 
missioners, and  shall  receive  no  additional  salary  or  compensa- 
tion for  such  services     [93  v.  463.] 

Sec.  2515^41  R.  S.  [Board's:  control.]  §  5.  Such  board  of 
park  commissioners  shall  have  the  entire  management  and  con- 
trol of  all  parks  now  belonging  to  any  such  city,  or  which  may 
hereafter  be  acquired  and  of  all  the  streams  within  and  flowing 
through  any  park  controlled  by  such  board.  Such  board  of 
park  commissioners  shall  also  have  the  entire  management  and 
control  of  all  improvements  of  every  nature  within  the  park  or 
parks  of  any  such  city;  and  of  all  moneys  derived  from  levies 
made  for  park  purposes,  and  of  all  moneys  from  the  general 
fund  appropriated  by  the  council  for  such  purposes,  and  of  the 
proceeds  of  all  bonds  issued  or  sold  for  park  purposes,  and  of 
all  moneys  or  other  property  donated  to  any  such  city  for  park 
purposes ;  all  of  which  moneys  shall  be  placed  in  a  special  fund 
called  the  "  park  fund,"  and  shall  be  disbursed  by  the  treasurer 
of  any  such  city,  only  upon  a  warrant  of  the  city  clerk,  drawn 
in  accordance  with  the  order  of  such  board  of  park  commis- 
sioners.     [93  v.  463.] 

Sec.  2515—42  R.  S.  [Board's  powers.]  §  6.  Such  board  of 
park  commissioners  shall  have  power  to  make  contracts  for  the 
improvements  of  the  grounds,  the  erection  of  the  necessary 
bridges  and  structures  therein,  and  to  adopt  rules  for  the  pro- 
tection, care  and  government  of  the  parks  under  its  charge,  and 
such  rules,  when  approved  by  the  council  of  any  such  city,  shall 
have  the  same  effect  and  may  be  enforced  by  the  same  penalties 
as  ordinances  of  the  city.      [93  v.  464.] 

Sec.  2515—43  R.  S.  [Power  to  incur  liability.]  §  7.  Such 
board  of  park  commissioners  shall  have  no  power  to  incur  any 
liability  for  park  purposes  beyond  the  amount  of  the  funds 
levied  therefor  or  appropriated  to  their  order  by  the  council  for 
such  purposes.      [93  v.  464.] 

Sec.  2515 — 44  R.  S.  [Employment  of  superintendents,  etc.] 
§  8.  Such  board  of  park  commissioners  may  employ  such  super- 
intendents, landscape  gardeners  and  other  employes  as  it  may 
deem  necessary  for  the  execution  of  its  duties,  and  fix  their 
salaries  or  compensation;  and  any  such  persons  may  be  re- 
moved by  such  board  at  any  time.      [93  v.  464.] 

Sec.  2515 — 45 R.  S.  [Report  to  council;  detailed  estimates.] 
§  9.  Such  board  of  park  commissioners  shall  annually,  on 
the  first  Monday  in  April,  make  a  report  to  the  council  of 
their  proceedings  in  respect  to  parks,  with  a  detailed  state- 


Code  §  220]     miscellaneous,     endowed  parks,  etc.  496 

merit  of  their  receipts  and  expenditures  during  the  year;  and 
they  shall  also  at  the  same  time  submit  to  the  council  a  detailed 
estimate  of  the  amount  of  money  necessary  to  maintain  and 
improve  such  park  or  parks  for  the  ensuing  year.      [93  v.  464.] 

Sec.  2515 — 45e  R.  S.  [Park  commissioners  to  have  control  of 
improvement  of  natural  watercourses,]  §  5.  Such  board  of  park 
commissioners  shall  have  entire  management  and  control  of 
all  work  of  straightening,  cleaning,  deepening,  or  otherwise  im- 
proving any  natural  watercourse,  whether  partly  or  wholly 
used  for  sewer  purposes  or  not,  within  such  city,  and  shall  be 
empowered  to  purchase,  acquire  or  condemn  any  water  rights, 
easements  or  privileges  in  connection  with  any  natural  water- 
course through  such  city,  and  to  acquire  or  condemn  such  real 
estate  as  may  be  necessary  for  such  purposes.      [94  v.  717.] 

Sec.  2515-^-45f  R.  S.  [Contracts;  bids  when.]  §  6.  It  shall 
be  the  duty  of  such  board  of  park  commissioners,  before  enter- 
ing into  any  contract  for  the  performance  of  any  work,  the  cost 
of  which  exceeds  one  thousand  dollars,  to  cause  plans  and 
specifications  and  forms  of  bids  to  be  prepared,  and  when 
adopted  by  such  board,  it  shall  have  the  same  printed  for  dis- 
tribution among  bidders.      [94  v.  718.] 

Sec.  2515 — 45gR.  S.  [Notice  for  proposals.]  §7.  The  board 
shall  not  enter  into  any  contract  for  work  or  supplies  where  the 
estimated  cost  thereof  exceeds  one  thousand  dollars,  without 
first  causing  thirty  days'  notice  in  one  newspaper  of  general 
circulation  in  the  corporation  that  sealed  proposals  may  be  re- 
ceiyed  for  doing  the  work  or  furnishing  such  materials  and 
supplies.      [94  v.  718.] 

Sec.  2515 — 45hR.  S.  [Bond  to  accompany  bids.]  §8.  Each 
bid  shall  be  accompanied  by  a  bond,  signed  by  sufficient  se- 
curity, for  the  acceptance  of  the  contract,  if  awarded  by  the 
board.      [94  v.  718.] 

Sec.  2515— 45iR.  S.  [Opening  bids,  etc.]  §  9.  All  bids  for 
work  and  supplies  shall  be  enclosed  in  a  sealed  envelope  and 
same  deposited  with  the  clerk  of  the  board,  and  such  sealed  en- 
velope shall  have  endorsed  thereon  the  nature  of  the  same,  and 
all  bids  shall  be  opened  at  a  regular  meeting  of  the  board.  [94 
v.  718.] 

Sec.  2515 — 45j  R.  S.  [Awarding  contracts.]  §  10.  The  board 
shall  enter  into  contract  with  the  lowest  responsible  bidder, 
upon  his  giving  bond  to  the  corporation  with  such  sureties  as 
the  board  shall  approve,  that  he  will  perform  the  work  or  fur- 
nish the  material  and  supplies  in  accordance  with  his  con- 
tract, and  such  board  shall  be  the  final  judges  as  to  who  are 


497  the  ohio   municipal   code.  [Code  §  220 

responsible  bidders,  and  on  the  failure  of  such  bidder,  within 
a  reasonable  time,  to  be  fixed  by  the  board,  to  enter  into  bond 
with  surety  as  before  provided,  the  contract  may  be  made  with 
the  next  highest  responsible  bidder,  and  so  on  until  the  con- 
tract is  effected  by  the  contractor  giving  bond  as  aforesaid; 
provided  that  the  board  may  reject  any  and  all  bids,  and  that 
no  member  of  the  said  board  shall  be  in  any  manner,  either  di- 
rectly or  indirectly,  interested  in  any  contract.      [94  v.  718.] 

Sec.  2515— 45k  R.  S.  [Reports  and  estimates.]  §  11.  Such 
board  of  park  commissioners  shall  annually,  on  the  first  Mon- 
day of  April  of  each  year,  make  a  written  report  to  the  council 
of  such  city,  of  their  proceedings,  with  a  detailed  statement  of 
their  receipts  and  expenditures,  during  the  year.  And  they 
shall  also  at  the  same  time  submit  to  the  council  a  detailed 
estimate  of  the  amount  of  the  money  necessary  to  dredge, 
straighten,  clean,  deepen,  and  otherwise  improve  such  water- 
courses and  purchase  and  acquire  such  water  rights,  easements 
and  privileges.      [94  v.  718.] 

Sec.  2167— 9  R.  S.     [Compensation;  oath;  bond.]       §3.     The 

members  of  said  board  of  hospital  trustees  shall  serve  without 
compensation,  and  before  entering  upon  the  discharge  of  their 
duties  shall  take  the  oath  of  office  prescribed  by  law,  and  shall 
each  give  bond  in  the  sum  of  twenty-five  hundred  ($2,500) 
dollars,  conditioned  according  to  law  and  to  the  approval  of  the 
mayor  and  council  of  such  city.      [93  v.  709.] 

Sec.  2167 — 10  R.  S.  [Meetings;  rules  and  regulations;  record; 
passage  of  resolution  or  order ;  quorum ;  no  member  to  be  interested 
in  contract;  clerk.]  §  4.  Such  board  of  hospital  trustees  shall 
hold  meetings  at  least  once  a  month,  and  shall  adopt  all  neces- 
sary rules  for  the  regulation  of  its  business;  it  shall  keep  a 
complete  record  of  all  its  proceedings,  which  record,  or  a 
copy  thereof,  duly  certified  by  the  clerk  of  said  board,  shall  be 
competent  evidence  of  the  transactions  of  said  board  in  all  the 
courts  of  this  state ;  the  ayes  and  nays  shall  be  called  upon  the 
passage  of  every  resolution  or  order;  three  (3)  members  of 
the  board  shall  constitute  a  quorum  for  the  transaction  of  all 
business,  and  no  resolution  or  order  shalLbe  adopted  or  con- 
tract or  other  obligation  entered  into  unless  three  (3)  members 
shall  vote  in  its  favor ;  and  no  member  of  the  said  board  shall 
be  interested,  directly  or  indirectly,  in  any  contract  concerning 
any  hospital  under  the  control  of  said  board.  The  city  clerk 
shall  act  as  the  clerk  of  such  board  of  hospital  trustees,  and 
shall  receive  no  additional  salary  or  compensation  for  such 
services.      [93  v.  709.] 


Code  §  220]     miscellaneous,     endowed  parks,  etc.  498 

Sec.  2167—11 R.  S.  [Board's  control.]  §  5.  Such  board 
of  hospital  trustees,  subject  to  the  ordinances  of  council,  shall 
have  the  entire  management  and  control  of  any  hospital  or 
hospitals  now  belonging  to  any  such  city,  or  which  it  may 
hereafter  acquire,  and  shall  establish  such  rules  for  the  govern- 
ment thereof  and  the  admission  of  persons  thereto  as  it  may 
deem  expedient;  such  board  of  hospital  trustees  shall  also 
have  the  entire  control  of  the  expenditure  of  all  moneys  which 
any  such  city  may,  from  time  to  time,  have  available  for  hos- 
pital purposes  from  whatever  sources  the  same  may  have  been 
derived,  and  the  same  shall  be  disbursed  by  the  treasurer  of  any 
such  city  only  upon  the  warrant  of  the  city  clerk,  drawn  in 
accordance  with  the  order  of  such  board  of  hospital  trustees. 
[93  v.  709.] 

Sec.  2167—12  R.  S.  [Further  as  to  same.]  §  6.  Such  board 
of  hospital  trustees  shall  have  the  entire  management  and  con- 
trol of  the  erection,  rebuilding  and  repair  of  all  buildings  used 
for  hospital  purposes,  and  shall  also  have  the  entire 
management  and  control  of  all  grounds  used  for  hospital  pur- 
poses, and  shall  adopt  rules  and  regulations  for  the  protection, 
care  and  government  of  all  such  buildings  and  grounds  under 
its  charge,  and  such  rules,  when  approved  by  the  council  of  any 
such  city,  shall  have  the  same  effect  and  may  be  enforced  by  the 
same  penalties  as  ordinances  of  the  city.      [93  v.  709.] 

Sec.  2167 — 13  R.  S.  [Procedure  before  entering  into  con- 
tracts.] §  7.  It  shall  be  the  duty  of  such  board  of  hospital 
trustees  before  entering  into  any  contract  for  the  erection  of 
a  hospital  building,  or  for  the  rebuilding  or  repair  of  any  hospi- 
tal building,  the  cost  of  which  exceeds  one  thousand  ($1,000) 
dollars,  to  cause  plans,  specifications,  detailed  drawings  and 
forms  of  bids  to  be  prepared,  and  when  adopted  by  the  board, 
it  shall  have  the  same  printed  for  distribution  among  the  bid- 
ders.     [93  v.  709.] 

Sec.  2167— 14  R.  S.     [How  contracts  to  be  made.]       §  8.     All 

contracts  shall  be  made  in  the  name  of  the  corporation,  and  it 
shall  be  stipulated  therein  that  the  contractors  will  not  execute 
any  extra  work  or  make  any  modifications  or  alterations  in  the 
specifications  and  plans,  unless  ordered  in  writing  by  the  board ; 
that  they  will  not  claim  pay  for  the  same  unless  such  written 
order  is  given,  and  the  extra  price  or  compensation  fixed  and 
agreed  upon;  and  copies  of  the  plans  and  drawings  attested 
by  the  contractor,  and  the  original  bids,  specifications  and  con- 
tracts shall  be  deposited  in  the  office  of  the  clerk  of  the  cor- 
poration.     [93  v.  710.] 


499  the  ohio   municipal   code.  [Code  §  220 

Sec.  2167—15  R.  S.  [Notice  for  bids.]  §  9.  The  board 
shall  not  enter  into  any  contract  for  work,  or  supplies,  where 
the  estimated  cost  thereof  exceeds  one  thousand  ($1,000)  dol- 
lars, without  first  causing  thirty  (30)  days'  notice  to  be  given 
in  one  newspaper  of  general  circulation  in  the  corporation,  that 
sealed  proposals  will  be  received  for  doing  the  work  or  fur- 
nishing the  materials  and  supplies.      [93  v.  710.] 

Sec.  2167— 16R.S.  [Bids.]  §  10.  Each  bid  shall  be  ac- 
companied with  a  bond,  signed  by  sufficient  security,  for  the 
acceptance  of  the  contract,  if  awarded  by  the  board,  to  fully 
secure  any  difference  between  the  amount  of  such  bid  and  the 
next  higher  bid ;  and  such  amount  shall  be  collected  by  the  board 
and  paid  into  the  hospital  fund,  in  case  of  the  refusal  by  the 
bidder  to  enter  into  contract  according  to  his  bid,  within  such 
reasonable  time,  as  the  board  may  determine.      [93  v.  710.] 

Sec.  2167—17  R.  S.  [Same.]  §  11.  All  bids  shall  be  en- 
closed in  a  sealed  envelope,  and  deposited  with  the  clerk  of  the 
board,  and  such  sealed  envelope  shall  have  endorsed  thereon 
the  nature  of  the  same ;  and  all  bids  shall  be  opened  at  a 
regular  meeting  of  the  board.      [93  v.  710.] 

Sec.  2167— 18  R.  S.  [With  whom  board  to  contract.]  §  12. 
The  board  shall  enter  into  contract  with  the  lowest  responsible 
bidder,  upon  his  giving  bond  to  the  corporation  with  such  se- 
curity as  the  board  shall  approve,  that  he  will  perform  the  work 
and  furnish  materials  or  supplies  in  accordance  with  his  con- 
tract; and  on  the  failure  of  such  bidder  within  a  reasonable 
time,  to  be  fixed  by  the  board,  to  enter  into  bond  with  the  se- 
curity before  provided,  a  contract  may  be  made  with  the  next 
lowest  responsible  bidder,  and  so  on,  until  a  contract  is  effected 
by  a  contractor  giving  bond  as  aforesaid;  provided  that  the 
board  may  reject  any  and  all  bids.      [93  v.  710.] 

Sec.  2167 — 19  R.  S.  [Power  of  board  to  incur  liabilities.] 
§  13.  Such  board  of  hospital  trustees  shall  have  no  power  to 
incur  any  liability  for  hospital  purposes  beyond  the  amount  of 
the  funds  levied,  or  otherwise  received  for  such  purpose.  [93 
v.  710.] 

Sec.  2167 — 20  R.  S.  [Employment  of  superintendents,  physi* 
cians,  etc.]  §  14.  Such  board  of  hospital  trustees  may  employ 
such  superintendents,  physicians,  nurses  and  other  employes 
as  it  may  deem  necessary  for  the  execution  of  its  duties,  and 
fix  their  salaries  or  compensation;  and  any  of  such  persons 
may  be  removed  by  such  board  at  any  time.      [93  v.  710.] 

Sec.  2167 — 21 R.  S.  [Report  to  council;  estimate.]  Such 
board  of  hospital  trustees   shall  annually,   on  the  first  Mon- 


Code  §  220]     miscellaneous,     endowed  parks,  etc.  500 

day  in  April,  make  a  report  to  the  council  of  their  proceedings 
in  respect  to  hospitals,  with  a  detailed  statement  of  their  re- 
ceipts and  expenditures  during  the  year;  and  they  shall  also 
at  the  same  time  submit  to  the  council  a  detailed  estimate  oi 
the  amount  necessary  to  maintain  and  improve  such  hospital 
for  the  ensuing  year.      [93  v.  710.] 


501  [Code  §§  222—224 


VI 

ELECTION,  APPOINTMENT  AND  RE- 
MOVAL OP  OFFICERS. 

Sec.  222.1  [Municipal  officers;  election  and  beginning  of 
term.]2  All  elective  municipal  officers,  and  judges  and  clerks 
of  police  courts  and  assessors  shall  be  chosen  on  the  first  Tues- 
day after  the  first  Monday  in  November  in  the  odd  numbered 
years,  for  a  term  of  two  years,  except  judges  of  police  courts 
who  shall  be  chosen  for  a  term  of  four  years,  and  their  respec- 
tive terms  of  office  shall  commence  on  the  first  day  of  January 
next  after  their  election.     [1906,  April  14,  98  v.  172;  97  v.  39.] 

(1)  There  is  no  Code  §221.  Municipal     elections.  —  Other 

(2)  Old  section. — Compare  old  provisions  relating  thereto  will  be 
§  1723  R.  S.    (repealed).  found    under    the    title    Officers, 

Election  and  Removal,  in  Part   II. 

Sec.  223.  [Appointment  of  municipal  officers.]  The  direc- 
tors of  public  safety,  directors  of  the  university,  street  commis- 
sioner or  any  board  or  officer  whose  appointment  is  required 
by  this  act  shall  be  appointed  not  earlier  than  the  second  Mon- 
day in  May  and  not  later  than  the  first  Monday  in  June,  1903, 
and  subsequently,  after  the  expiration  of  the  terms  of  said 
boards  and  officers,  their  successors  shall  be  appointed  not 
earlier  than  the  second  Monday  in  January,  and  not  later  than 
the  first  Monday  in  February,  and  the  boards  and  officers  serv- 
ing when  this  act  goes  into  effect  shall  hold  their  respective 
offices  until  their  successors  are  appointed  as  required  herein. 
[Amended  1904,  March  17,  97  v.  39.] 

Sec.  224.  [Oaths  and  bonds;  "city  clerk/ '  meaning  of 
words.]  With  respect  to  oaths  of  office  and  official  bonds  and 
the  effect  of  the  failure  to  take  or  give  the  same,  sections 


Code  §  224]     election  and  removal  of  officers. 


502 


1737,  1738,  1739,  1740,  1741,  1742,  and  1743,  of  the  Revised 
Statues  of  Ohio,  where  not  inconsistent  with  this  act,  shall  be 
and  remain  in  full  force  and  effect ;  and  where  the  words  ' '  city 
clerk"  appear  in  said  sections  they  shall  be  construed  to  mean, 
in  a  city,  the  auditor,  and  in  a  village,  the  clerk. 

Sec.  1737  R.  S.  [Qualifications;  oaths;  solicitor.]1  Each  offi- 
cer2 of  the  corporation,  or  any  department  or  board  thereof, 
whether  elected  or  appointed  as  a  substitute  for  a  regular  offi- 
cer, shall  be  an  elector3  within  the  corporation,  except  as  herein 
expressly  provided,  and  before  entering  upon  his  official  duties, 
shall  take  an  oath  or  affirmation  to  support  the  constitution  of 
the  United  States  and  the  constitution  of  Ohio,  and  an  oath  or 
affirmation  that  he  will  faithfully,  honestly,  and  impartially 
discharge  the  duties  of  the  office,4  and  the  provisions  as  to  offi- 
cial oaths  shall  extend  to  deputies,  but  they  need  not  be  elec- 
tors. And  no  person  shall  be  eligible  to  the  office  of  solicitor 
of  the  corporation  who  is  not  an  attorney  and  counselor  of 
[at]  law  duly  admitted  to  practice  in  this  state  as  provided  by 
law.     [92  v.  68;  66  v.  162,  §  79;  (S.  &  C.  1525).] 


( 1 )  Other  provisions.  —  Com- 
pare provisions  in  Art.  XV.,  Sec.  4 
Const.,  requiring  all  officers  to  be 
electors ;  §  2  R.  S.  requiring  all  of- 
ficers, including  deputies,  to  take 
oath  of  office. 

(2)  Who  is  an  officer— Defi- 
nition of  office,  see  Shaw  v.  Jones, 
4  N.  P.  372;  State  v.  Jennings,  57 
O.  S.  415. 

A  fireman  appointed  by  proper 
municipal  authorities  and  having 
no  control  over  fire  department  or 
property,  but  merely  subject  to  the 
fire  chief  and  board,  and  paid  by 
the  month,  is  not  an  officer.  State 
v.  Jennings,  57  O.  S.  415. 

So  it  was  held  an  employe  of  a 
city  to  trim  lights  in  its  electric 
light  department  is  not  an  officer. 
State  v.  Anderson,  57  0.  S.  429. 

And  an  engineer  employed  to  run 
an  engine  in  electric  light  depart- 
ment is  not  an  officer.    76. 

Clerk  of  water  works  board  or 
clerk  of  board  of  public  service,  not 


an  officer.  Hutchinson  v.  Lima,  27 
C.  C.  545;  6  C.  C.    (N.  S.)   529. 

Workhouse  matron  not  an  officer, 
but  an  employe.  Jameson  v.  Cin- 
cinnati, 28  C.  C.  41;  7  C.  C.  (N.  S.) 
100. 

Deputy  is  held  not  to  be  an  officer 
within  Art.  XV.,  §  4,  of  Constitu- 
tion. Warwick  v.  State,  25  O.  S. 
21 ;  nor  within  the  meaning  of  the 
penal  laws  relating  to  officers,  State 
v.  Meyers,  56  O.  S.  340,  349;  but  a 
deputy  is  required  by  §  1737  R.  S. 
above,  to  take  an  oath  of  office. 
There  is  no  requirement  that  he  give 
bond,  and  he  would  not,  according  to 
the  cases  above,  be  an  officer  men- 
tioned in  the  statute  requiring  "offi- 
cers" to  give  bond. 

(3)  Officers  must  be  electors. — 
Persons  not  citizens  of  the  United 
States,  and  therefore  not  electors, 
cannot  be  officers.  State  ex  rel.  v. 
Collister,  27  C.  C.  529;  6  C.  C.  (N. 
S.)  33.  And  a  person  disqualified 
at  the  time  of  his  election   cannot 


503 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  224 


thereafter,  by  removing  the  disqual- 
ification, hold  the  office,     lb. 

Females  are  ineligible  to  office, 
not  being  electors.  State  ex  rel.  v. 
Rust,  4  C.  C.  329;  State  v.  Adams, 
58  0.  S.  612;  State  v.  McKinley,  57 
0.  S.  627.  But  since  a  deputy  is 
not  an  officer  a  female  may  be  a 
deputy.  Warwick  v.  State,  25  O.  S. 
21. 

De    facto    officers    defined. — 

Ex  parte  Strang,  21  O.  S.  610; 
Ermston  v.  Cincinnati.  7  N.  P.  635; 
State  v.  Gardner,  54  0.  S.  24;  Git- 
sky  v.  Newton,  17  C.  C.  484,  aff'd 
60  O.  S.  605;  State  v.  O'Brien.  47  O. 
S.  464;  Brenier  v.  Becker,  37  O.  S. 
72;  State  v.  Ailing,  12  O.  16;  State 
ex  rel.  v.  Constable,  7  0.   (pt.  1)   7. 

Acts  of  de  facto  officers  valid. 

—Heck  v.  Findlay,  etc.,  16  C.  C. 
Ill,  aff'd  62  O.  S.  654;  State  v. 
Bingham,  14  C.  C.  245;  Ickes  v. 
State,  16  C.  C.  31;  State  ex  rel.  v. 
Constable,  7  O.  (1st  pt.)  7;  Smith 
v.  Lynch,  29  O.  S.  261;  Kirker  v. 
Cincinnati,  48  O.  S.  507;  Guernsey 
Co.  v.  Cambridge,  7  C.  C.  72;  Moli- 
tor  v.  State,  6  C.  C.  263,  aff'd  29  B. 
152. 

An  officer  holding  under  an  un- 
constitutional law  is  a  de  facto  offi- 
cer, and  his  acts  cannot  be  collat- 
erally attacked.  Ex  parte  Strang, 
21  O.  S.  610;  Heck  v.  Findlay,  16 


C.  C.  Ill  (aff'd  62  O.  S.  654); 
State  v.  Gardner,  54  O.  S.  24;  Git- 
sky  v.  Newton,  17  C.  C..484;  State 
ex  rel.  v.  Bingham,  14  C.  C.  245. 

As  to  validity  of  acts  of  officers 
or  boards  under  an  unconstitutional 
statute  or  ordinance,  see  Findlay 
v.  Pendleton,  62  O.  S.  80;  Kirker 
v.  Cincinnati,  48  O.  S.  507;  Smith 
v.  Lynch,  29  O.  S.  261. 

(4)  Necessity  of  oath. — All  of- 
ficers must  take  an  oath  of  office, 
no  matter  whether  the  statute  pre- 
scribes an  oath  or  not.  If  an  office 
is  created  in  any  way,  before  the 
person  to  occupy  it  enters  upon  his 
official  duties,  he  must  take  an  oath 
of  office.  State  ex  rel.  v.  Kennon, 
7  O.  S.  546. 

But  it  has  been  held  that  members 
of  a  board  of  review  having  taken 
an  oath  of  office  as  members  of 
such  board,  need  not  take  another 
oath  when  acting  as  the  decennial 
board  of  equalization.  N.  C.  Har- 
mony Lodge  v.  Hagerty,  28  B.  66. 

As  to  person  appointed  tempora- 
rilv  to  assist  officer,  see  Martin  v. 
State,  16  O.  364. 

To  be  entitled  to  a  salary  an  offi- 
cer must  take  the  oath  and  qualify 
according  to  law.  State  v.  Eshelby, 
2  C.  C.  468. 

See  further  notes  under  §  1740 
R.  S.,  p.  507. 


FORM  OF  OATH  OF  OFFICE. 


State  of  Ohio, 


.  County, 


I,  ,  do  solemnly  swear  [or  affirm]  that  I  will  sup- 
port the  constitution  of  the  United  States  and  the  constitution  of  the 
State  of  Ohio,  and  that  I  will  faithfully,  honestly  and  impartially  dis- 
charge the  duties  of  the  office  of of  the  city  [or  village] 

of ,  State  of  Ohio,  during  my  continuance  in  said 

office. 

Sworn  to  [or  affirmed]  before  me  and  subscribed  in  my  presence  this. . . . 
day  of ,   19.... 


Notary  Public. 


Code  §  224]  election  and  eemoval  of  officers. 


504 


Sec.  1738  R.  S.  [Official  bonds.]  The  official  bonds  of  all 
municipal  officers  shall  be  prepared  by  the  solicitor ;  they  shall, 
except  as  otherwise  provided  in  this  title,  be  in  such  sum  as  the 
board  of  trustees  l-  or  council  shall  prescribe,  by  general  or 
special  ordinance,  and  be  subject  to  the  approval  of  the  mayor, 
except  that  the  mayor's  bond  shall  be  approved  by  the  council, 
or  if  it  [is]  not  legally  organized,  by  the  clerk  of  the  Court 
of  Common  Pleas  of  the  county  in  which  the  corporation  or  the 
larger  part  thereof  is  situate;  the  condition  that  the  person 
elected  or  appointed  shall  faithfully  perform  the  duties  of  the 
office,  shall  be  sufficient ;  2  and  the  fact  that  the  instrument  is 
without  a  seal ;  that  blanks,  like  the  date  or  amount,  have  been 
filled  subsequent  to  the  execution  of  it,  but  before  its  accept- 
ance, without  the  consent  of  the  sureties ;  that  all  the  obligees 
named  in  the  instrument  have  not  signed  it;  that  new  duties 
have  been  imposed  on  the  officer;  or  that  any  merely  formal 
objection  exists,  shall  not  be  available  in  any  suit  on  the  in- 
strument.3     [66  v.  163,  §  81;  74  v.  142,  §  80.] 


( 1 )  Trustees  here  evidently 
means  trustees  of  hamlets  and  not 
any  board  of  trustees  there  may  be 
in  cities  or  villages.  As  to  status 
of  hamlets  see  note  under  §  1  of  the 
Code.  , 

(2)  Condition  in  bond. — 
As  to  sufficiency  of  condition,  com- 
pare §  7  R.  S.  under  Officers  in 
Part  II. 

An  official  bond  conditioned  for 
the  faithful  discharge  of  the  duties 
of  an  office  "  according  to  law  "  em- 
braces duties  required  by  laws  in 
force  during  the  term  of  the  officer, 
whether  enacted  at  or  after  the  exe- 
cution of  the  bond.  Dawson  v. 
State,  38  O.  S.  1 ;  King  v.  Nichols, 
16  O.  S.  80. 

If  bond  omits  tho  condition  re- 
quiring officer  to  pay  over  all 
moneys  received  by  him,  it  is  im- 
material, as  it  would  be  cured  by 
§  7  R.  S.  State  ex  rel.  v.  Slough, 
12  C.  C.  105. 

Acceptance  of  bonds. —  Formal 
acceptance  of  officers'  bond  is  not 
necessary.     Receiving  the  bond  with- 


out objection  is  sufficient.  Barret 
v.  Reed,  2  O.  409,  413;  Rogers  v. 
Pugh,  1  Disney,  443. 

Where  proper  bond  is  tendered,  it 
must  be  accepted,  and  no  discretion 
to  refuse  it  is  allowed.  State  v. 
Cincinnati,  11  O.  S.  544;  and  man- 
damus will  lie  to  compel  acceptance. 
lb.;  State  ex  rel.  v.  Lewis,  10  O.  S. 
128;  O'Connell  v.  Boyle,  Ohio  Dec. 
(Dayt.)  280. 

Rejection  of  bond  may  be  shown 
by  parol.  Westerhaven  v.  Clive,  5 
O.  136. 

Character  of  bond.— See  §  3641c 
R.  S.  in  Part  II.,  p.  539. 

Validity. —  Bond  may  be  good  in 
part  and  bad  in  part,  and  though 
defective  under  the  statute,  it  may 
be  a  good  bond  at  common  law. 
State  v.  Findley,  10  O.  51. 

The  bond  will  be  valid  though  the 
name  of  surety  is  omitted  from  body 
of  bond.  McClain  v.  Simington,  37 
O.  S.  484 ;  Partridge  v.  Jones,  38  O. 
S.  375. 

Mistake  in  name  of  obligee,  does 
not  invalidate  the  bond.  Barret  v. 
Reed,  2  O.  409. 


505 


THE     OHIO     MUNICIPAL     CODE. 


[Code  §  224 


(3)   Liability     of     sureties.— 

Defective  bond. — Sureties  who  exe- 
cute a  bond  may  be  liable  on  a  bond 
reciting  the  name  of  the  officer, 
though  the  officer  has  not  signed  it. 
State  v.  Bowman,  10  O.  445. 

Extent  of  liability. — General 
principles. — Sureties  are  liable  for 
acts  of  the  official  virtute  officii 
within  his  official  authority  but  un- 
faithfully or  improperly  done,  but 
not  for  acts  of  the  official  colore 
officii  with  pretense  of  official  au- 
thority. Storey  v.  Jennings,  4  O.  S. 
418;  Drolesbaugh  v.  Hill,  64  O.  S. 
257;  nor  where  the  official  has  been 
guilty  of  misconduct  wholly  outside 
of  the  line  of  his  official  duty  as 
prescribed  by  law.  State  v.  Medary, 
17  Ohio  554;  State  v.  Griffiths,  74 
O.  S.  —  (51  B.  259;  State  v. 
Cottle,  8  C.  C.   (N.  S.)    120. 

Officer  acting  beyond  duty. — In- 
terest arising  from  money  deposited 
by  treasurer,  is  covered  by  his  bond, 
whether  the  deposit  was  authorized 
or  not.  Eshelby  v.  Bd.  of  Educa- 
tion, 66  O.  S.  71;  Glenville  v.  Engle- 
hart,  19  C.  C.  285. 

But  where  a  clerk  performed  an 
act  which  was  beyond  the  duties  of 
his  office,  it  was  held  his  sureties 
were  not  liable.  Carpenter  v. 
Sloane,  20  O.  327. 

It  was  held  the  sureties  on  a 
county  treasurer's  bond  were  liable 
for  taxes  collected  by  him  and  mis- 
applied, though  the  levy  of  the  taxes 
was  illegal.  Feigert  v.  State,  31  O. 
S.  432. 

They  are  liable  for  sums  drawn 
by  clerk  when  not  authorized  by 
council  or  larger  than  allowed  by 
council,  and  appropriated  to  his  own 
use,  and  money  received  from  cash- 
ing and  appropriating  to  his  own 
use  claims  allowed  by  council  and 
belonging  to  other  persons.  Green- 
ville v.  Anderson,  58  0.  S.  463. 

Acting  as  other  officer. — Bond  for 
faithful  performance  of  duties  by 
member  of  a  board,  will  not  cover 
defalcations  of  such  officer  while  act- 
ing as  an  apointee  of  the  board 
(such  as  commissioner  appointed  by 
board)  even  though  members  of  the 
board  only  are  eligible  to  such  ap- 
pointment. State  v.  Medary,  17  O. 
554. 


Acts  during  other  term. — A  bond 
given  for  the  first  term  does  not 
cover  acts  of  the  officer  during  his 
second  term,  no  valid  bond  being 
given  for  the  second  term.  State  v. 
Crooks,  7  O.  (2nd.  pt.)  221;  State 
v.  Corey,  4  W.  L.  M.  563. 

Whether  sureties  on  the  bond  of 
an  officer  holding  over  until  his  suc- 
cessor qualifies,  would  be  liable  dur- 
ing the  time  of  such  holding  over, 
guere.  State  ex  rel.  v.  Killits,  8  C. 
C.  30. 

Where  the  officer's  bond  was  not 
accepted  until  part  of  his  term  had 
expired,  and  he  had  collected  money 
both  before  and  after  the  bond  was 
accepted,  the  sureties  will  be  liable 
for  peculations  from  all  sums  col- 
lected, if  not  shown  from  what  par- 
ticular fund  the  money  was  stolen 
by  the  officer.  Reed  v.  Board  of 
Education,  39  O.  S.  635. 

The  defalcation  is  presumed  to 
have  occurred  during  the  term  for 
which  the  last  bond  was  given. 
Pummill  v.  Baumgartner,  3  N.  P. 
40;  Kelly  v.  State,  25  O.  S.  567; 
State  v.  Corey,  4  W.  L.  M.  563. 

Where  new  duties  imposed. — The 
surety  is  liable  for  default  in  con- 
nection with  new  duties  imposed  on 
the  officer  since  giving  of  bond,  if 
such  duties  are  appropriate  to  his 
office,  but  not  if  the  duties  are  not 
appropriate  to  the  office.  St.  Marys 
v.  Rowe,  15  Dec.  687;  2  N.  P.  (N. 
S.)  645.  The  new  duty  imposed  by 
ordinance  on  clerk  of  council  to  col- 
lect special  assessments  is  not  ap- 
propriate to  his  office,  and  will  not 
make  his  sureties  liable  for  default 
in  this  connection.     lb. 

After  death  of  principal. — Sure- 
ties are  liable  for  failure  of  personal 
representative  of  officer  to  pay  over 
money  that  came  into  officer's  hands 
officially.  Peabody  v.  State,  4  O.  S. 
387. 

Defenses  of  surety. — Negligence 
oi  the  treasurer  in  paying  warrants 
drawn  by  the  city  clerk  does  not  re- 
lieve sureties  on  clerk's  bond.  Green- 
ville v.  Anderson,  58  O.  S.  463. 

Omission  of  principal  to  take  the 
oath  of  office  does  not  relieve  sure- 
ties of  liability.  State  v.  Find  ley. 
10  O.  51;  Gage  v.  Payne,  Wright. 
678. 


Code  §  224]  election  and  removal  of  officers. 


506 


It  is  no  defense  that  the  money 
was  not  demanded  from  the  prin- 
cipal until  after  his  term  expired. 
King  v.  Nichols,  16  O.  S.  80;  nor 
that  demand  was  not  made  until 
after  death  of  principal.  Peabody 
v.  State,  4  O.  S.  387. 

The  sureties  may  have  any  de- 
fense that  the  principal  could  set 
up,  including  the  statute  of  limita- 
tions. State  v.  Blake,  2  O.  S.  147; 
State  v.  Conway,  18  O.  234.  As  to 
the  limitations  of  actions  on  official 
bonds,  see  State  v.  Blake,  2  O.  S. 
147. 

It  was  held  no  defense  to  a  suit 
on  a  county  treasurer's  bond,  that 
the  money  was  stolen  from  him 
without  any  fault  of  his  own.  State 
v.  Harper,  6  O.  S.  607. 

The  rule  that  an  act  by  the  cred- 
itor, prejudicial  to  the  surety,   dis- 


charges him,  does  not  apply  to  sure- 
ties on  official  bonds  for  faithful 
performance.  State  v.  Alden,  12  O. 
59. 

Blanks  in  bond  filled  after  exe- 
cution. See  §  6  R.  S.  under  Offi- 
cers in  Part  II. 

Pleading  and  practice. —  In  ac- 
tion against  obligors  on  bond  the 
personal  representative  of  principal 
is  not  a  necessary  party.  Hunt  v. 
Gaylor,  25  O.  S.  620. 

Petition  on  an  official  bond  must 
aver  the  condition  of  the  bond,  and 
not  merely  that  it  was  given  ac- 
cording to  law.  Bisack  v.  Pape,  1 
B.  126;  it  must  aver  also,  the  of- 
fice and  the  appointment  or  election 
to  it.  Court  of  Common  Pleas  v. 
Seargent,  W.  482;  but  it  need  not 
aver  that  the  officei*  qualified.  State 
v.  Piatt,  15  O.  15. 


FORM  OF  OFFICIAL  BOND. 

Know  all  men  by  these  presents;  That  we principal, 

and and ,   sureties,   are   held  and 

firmly  bound  unto  the  city  [or  village]    of ,  State  of 

Ohio,  in  the  sum  of  $ .  .to  be  paid  to  the  said  city  [or  village], 

for  the  payment  whereof  well  and  truly  to  be  made  we  jointly  and  severally 
bind  ourselves,  our  heirs,  executors  and  administrators  firmly  by  these 
presents. 

Witness  our  hands  this day    of ,    19 ... . 

The  condition  of   the  above  obligation  is  such  that,   Whereas,  the  said 

was,  on  the day  of 

elected  [or  appointed]  to  the  office  of of  the  city  [or 

village]  of ,  State  of  Ohio  for  the  term  of 

years  and  until  his  successor  is  elected  [or  appointed]  and  qualified. 

Now   therefore,   if  the  said faithfully  performs  the 

duties  of  the  said  office  during  his  continuance  therein  then  this  obligation 
shall  be  void  and  of  no  effect;  otherwise  to  be  and  remain  in  full  force, 
effect  and  virtue. 


Executed   in  presence  of 


507 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  224 


Sec.  1739  R.  S.  [Approval  of  bond;  additional  bond.]  Each 
officer  named  in  chapter  two  of  this  division,1  and  all  others,  ex- 
cept as  in  this  title  provided,  who  may  be  required  so  to  do, 
by  law  or  ordinance,  shall  give  bond,  before  entering  on  the 
duties  of  the  office ;  each  officer  may  be  required  by  the  council, 
in  its  discretion,  at  any  time,  to  give  a  new  or  additional 
bond;  each  bond,  except  the  bond  of  the  clerk,  shall,  upon  its 
approval,  be  delivered  to  the  city  clerk,  who  shall  immediately 
record  the  same  in  a  record  provided  for  that  purpose,  and 
file  and  carefully  preserve  the  same  in  his  office;  and  the 
bond  of  the  clerk  shall  be  delivered  to  the  city  auditor,  who 
shall  in  like  manner  record  and  preserve  the  same.2  [74  v. 
142,  §  80.] 


(1)  Chapter  and  Division  here 
referred  to  are  Chap.  2,  Div.  4,  Ti- 
tle XII,  R.  S.?  containing  former 
statutes  relating  to  officers  of  cities 
and  villages. 

(2)  Additional  bonds.— Where 
an  officer  is  required  to  give  an  ad- 
ditional bond.,  either  or  both  sets  of 


bondsmen  are  liable  for  his  de*%ults. 
State  v.  Crooks,  7  0.  (2nd  pt./  221; 
but  both  cannot  be  joined  in  same 
action.  lb.  And  the  additional 
bond  covers  defalcations  during  the 
entire  term.  Thorne  v.  Megrue,  3 
Rec.  140. 


Sec.  1740 U.S.     [Effect  of  failure  to  take  oath  or  give  bond.] 

The  council  may  declare  vacant  the  office  of  any  person  elected 
or  appointed  to  an  office  who  shall  fail  to  take  the  oaths  re- 
quired in  section  seventeen  hundred  and  thirty-seven  or  to  give 
any  bond  required  of  him,  within  ten  days  after  he  has  been 
notified  of  his  appointment,  or  election,  or  obligation  to  give  a 
new  or  additional  bond,  as  the  case  may  be.1      [67  v.  70,  §  80.] 


(1)  Effect  of  failure  to  take 
oath,  etc. —  See  §  2  R.  S.,  under 
Officers,  in  Part  II,  providing  that 
failure  to  take  oath  does  not  affect 
liability  of  sureties;  and  §  19  R. 
S.  providing  that  failure  to  give 
bond  as  required  shall  be  deemed 
a  refusal  of  the  office  and  the  same 
shall  be  considered  vacant. 

By  the  above  section  1740  R.  S.j 
however,  the  failure  to  take  oath  or 


give  bond  does  not  ipso  facto  vacate 
the  office. 

The  oath  of  office  and  bond  have 
been  held  not  conditions  precedent 
to  entering  upon  the  duties  of  the 
office.  State  v.  Findley,  10  O.  51; 
State  ex  rel.  v.  Pollner,  18  C.  C. 
304. 

As  to  time  of  giving  bond,  see 
subject  discussed  in  State  ex  rel.  v. 
Comm'rs,  61  O.  S.,  506;  State  ex  rel. 
Witham  v.  Nash,  65  O.  S.,  549. 


Sec.  1741  R.  S.  [If  new  bond  required,  notice  to  be  given.] 
When  the  council  declares,  by  resolution,  that  an  officer  shall 
give  a  new  bond,  written  notice  shall  be  served  by  the  clerk  *  of 


(Dode  §   225]   election  and  removal  of  officers.  508 

the  corporation  upon  the  officer  designated,  and  a  copy  of  the 
notice,  with  a  statement  of  the  time  and  place  of  service,  shall 
be  recorded  in  the  proceedings  of  the  council.      [74  v.   114, 

§2.] 

(1)   See  §  224  of  the  Code,  page  502. 

Sec.  1742  R.  S.  [Office  vacant  if  notice  not  complied  with.] 
If  the  officer  fail  to  give  such  new  bond,  with  sureties,  to  the 
satisfaction  of  the  council,  within  ten  days  after  such  service,  the 
council  shall  declare  the  office  vacant,  and  the  vacancy  shall 
be  filled  in  the  manner  provided  in  this  title.      [74  v.  114,  §  2.] 

Sec.  1743  U.S.  [How  sureties  affected.]  When  the  new 
bond  is  accepted,  or  the  council  declares  the  office  vacant,  the 
sureties  in  the  original  bond  shall  cease  to  be  liable  for  the 
acts  of  the  officer  done  thereafter,  but  not  for  the  acts  then 
already  done.      [74  v.  114,  §  3.] 

Sec.  225.  [Impeachment  of  head  of  department  or  officer;  pro- 
cedure.]1 It  is  hereby  made  the  duty  of  the  mayor  to  have  a 
general  supervision  over  each  department  and  the  officers  pro- 
vided for  in  this  act,  and  where  the  mayor  has  reason  to  believe 
that  the  head  of  any  department  or  officer  provided  for  in  this 
act  has  been  guilty  in  the  performance  of  his  official  duty  of 
bribery,  misfeasance,  malfeasance,  non-feasance,2  misconduct  in 
office,  or  any  gross  neglect  of  duty,  gross  immorality  or  habitual 
drunkenness,  he  shall  immediately  file  with  the  council  written 
charges 3  against  said  head  of  department  or  officer,  setting 
forth  in  detail  a  statement  of  such  alleged  bribery,  misfeasance, 
malfeasance,  non-feasance,  misconduct  in  office,  gross  neglect 
of  duty,  gross  immorality  or  habitual  drunkenness,  and  he 
shall  serve  or  cause  to  be  served  at  the  time  of  the  filing  of  said 
charges  or  as  soon  thereafter  as  possible,  a  true  copy  of  such 
charges  with  the  head  of  the  department  or  officer  against  whom 
said  charges  are  made,  and  may  serve  the  same  in  person  or  by 
leaving  a  copy  of  said  charges  at  the  office  of  the  head  of  such 
department  or  officer  and  make  due  return  to  council  of  such 


509  the  ohio  municipal  code.       [Code  §   225 

service  as  is  provided  for  the  return  of  the  service  of  summons 
in  a  civil  action.4  Said  charges  when  so  filed  with  council  shall 
be  for  hearing  at  the  next  regular  meeting  of  council,  unless 
council  shall  extend  the  time  for  the  hearing  of  the  same,  which 
shall  only  be  done  on  the  application  of  the  accused.5  The  ac- 
cused shall  have  the  right  to  appear  in  person  and  by  counsel 
and  examine  all  witnesses  and  answer  all  charges  against  him ; 
and  the  judgment  or  action  of  council  shall  be  final  provided 
that  it  shall  require  the  votes  of  two-thirds  of  all  members 
elected  to  council  to  remove  such  officer.6  Pending  any  of  said 
proceedings  such  head  of  department  or  officer  may  be  suspended 
by  a  majority  vote  of  all  members  elected  to  council,  but  such 
suspension  shall  not  be  for  a  longer  period  than  fifteen  days 
unless  the  hearing  of  said  charges  shall  be  extended  upon  the 
application  of  the  accused,  and  in  such  event  the  suspension 
shall  not  exceed  a  period  of  thirty  days.  Provided,  that  for  the 
purpose  of  investigating  charges  against  the  head  of  any  de- 
partment or  officer  as  aforesaid,  the  council,  shall  have  power 
to  issue  subpoenas,  or  compulsory  process  to  compel  the  attend- 
ance of  persons  and  the  production  of  books  and  papers  bef o?e 
the  council,  and  shall  have  power  to  provide  by  ordinance  for 
exercising  and  enforcing  this  provision.  And  provided  further 
that  in  all  cases  in  which  the  attendance  of  witnesses  may  be 
compelled  for  the  investigation  of  any  charges  as  aforesaid, 
any  member  of  the  council  shall  have  power  to  administer  the 
requisite  oaths ;  and  such  council  shall  have  such  power  to  com- 
pel the  giving  of  testimony  by  the  attending  witnesses  as  is  con- 
ferred on  courts  of  justice.  In  all  such  cases  witnesses  shall 
be  entitled  to  the  same  privileges,  immunities  and  compensation 
as  are  allowed  witnesses  in  civil  cases,  and  the  costs  of  all  such 


Code  §  225]     election  and  removal  of  officers. 


509a 


proceedings  shall  be  payable  out  of  the  general  fund  of  the 
municipal  -corporation.     [1904,  April  25,  97  v.  385.] 


(1)  Old  section. — Compare  old 
§  1685  R.  S.,  repealed,  providing 
for  removal  of  officers  by  vote  of 
council.  And  see  §§1732  to  1736 
R.  S.  inclusive,  relating  to  removal 
of  officers  by  Probate  Court,  in 
Part  II. 

Other  provisions  relating  to 
removals. — 

Generally;  by  heads  of  depart- 
ments, §  129  of  the  Code. 

In  department  of  public  service. — 
Power  to  remove  all  officers,  em- 
ployes, etc.,  appointed  by  the  board, 
*given  to  the  board,  §  129  of  the  Code. 
Cause  for  removal  must  be  such  as 
is  satisfactory  to  directors.  §  145 
of  the  Code. 

In  department  of  public  safety. — 
Members  of  board,  causes  for  re- 
moval and  method,  §  156  of  the 
Code.  Officers,  employes,  etc.,  ap- 
pointed by  board,  cause  for  removal 
(conviction  of  crime),  §  160;  meth- 
od of  removal  (board  to  provide 
rules),  §  161;  filing  of  charges  by 
mayor,  §  167 ;  appeal  to  board  from 
mavor,  §  186;  power  to  remove, 
§  129. 

Under  Council,  §§118  and  195  of 
the  Code. 

Under  University  Board,  §  217  of 
the  Code. 

Under  Library  Board,  §  218  of  the 
Code. 

Under  Board  of  Health,  §  2115 
R.  S.,  re-enacted  in  §  189  of  the 
Code. 

Suspensions;  of  deputies,  officers, 
etc.,  by  chief  of  police  and  fire 
chief;    of  chiefs,  by  mayor.     §  152. 

Removals  by  Probate  Court. — §§ 
1732  to  1736  R.  S.  inclusive,  under 
Officers  in  Part  II. 

Legislative  power  to  provide 
for  removal. — The  power  given  to 
the  legislature  to  provide  for  the 
organization  of  municipalities  car- 
ries with  it,  as  an  incident  to  its 
exercise,  the  power  to  provide  a 
mode  of  removal  of  officers.  State 
v.  Hawkins,  44  O.  S.  98,  110. 


The  legislature  alone  can  deter- 
mine the  causes  for  which  an  elec- 
tive officer  may  be  removed.  State 
v.  Ganson,  58  O.  S.  313. 

Character     of     power.  —  The 

power  to  remove  officers  is  not  nec- 
essarily a  judicial  power,  and  may 
be  conferred  by  the  legislature  upon 
legislative  bodies  and  executive  of- 
ficers. Dorgan  v.  Columbus,  12  Dec. 
121,  123. 

The  power  to  remove,  given  to  a 
board  or  officer,  cannot  be  dele- 
gated. Kelley  v.  Cincinnati,  7  N.  P. 
360. 

The  removal  of  officers  and  heads 
of  departments  does  not  affect  sub- 
ordinates or  give  the  removing 
board  power  to  remove  such  subor- 
dinates. State  v.  Hudson,  44  O.  S. 
137. 

(2)  What  officers.— The  phrase 
"head  of  any  department  or  offi- 
cer" does  not  include  city  council- 
men.  Cleveland  Illuminating  Co.  v. 
Hitchens  et  al.,  15  Dec.  522;  3  N.  P. 
(N.  S.)  57.  (Aff'd  Cir.  Ct.  no  rep.) 
Councilmen  may  be  removed  from  of- 
fice in  manner  provided  in  Sec.  1732 
R.  S.  et  seq.   (p.  557).     lb. 

Definitions. — Misfeasance  is  do- 
ing a  lawful  act  in  an  improper 
manner.  Colburn  v.  Newfarth,  16 
B.  54. 

Malfeasance  is  doing  a  wrongful 
act,  such  as  approving  fraudulent 
bills,  purchasing  property  for  pri- 
vate use,  etc.    76. 

Misconstruction  of  a  statute, 
about  which  there  might  be  a  dif- 
ference in  opinion,  would  not  be  evi- 
dence of  incompetency.  State  v. 
lioglan,  64  O.  S.  532. 

Misconduct  in  office  means  as  such 
officer  and  not  otherwise.  Graham 
v.  Stein,  18  C.  C.  770. 

Misconduct  in  office,  defined.  State 
v.  Bair,  50  B.  11. 

Where  an  officer  commits  an  of- 
fence for  which  he  may  be  indicted, 


510 


THE    OHIO    MUNICIPAL    CODE. 


[Code  §  225 


but  which  does  not  touch .  his  par- 
ticular character  as  such  officer,  he 
ought  not  to  be  removed  until  he 
has  been  indicted  and  convicted 
criminally.  Graham  v.  Stein,  18  C. 
C.  770;  State  v.  Chapman,  11  0. 
430. 

Incompetency  in  a  legal  sense 
means  a  lack  of  fitness  to  discharge 
the  duties  of  the  position,  and  of- 
ficial delinquency  or  corruption 
would  be  a  disqualification  render- 
ing an  officer  incompetent.  State  v. 
Fire  Commissioners,  26  0.  S.  24. 

Misconduct  implies  wantonness 
and  not  honest  mistakes.  State  ex 
rel.  v.  Holl,  7  W.  L.  J.  121. 

Statutory  causes  and  method 
exclusive. — Where  the  legislature 
has  prescribed  by  statute  the  causes 
for  removal  of  officers  and  also  pro- 
vided the  mode  of  procedur.  to  ac- 
complish the  removal,  the  enumera- 
tion in  the  statutes  of  the  causes  of 
removal,  excludes  every  other  cause. 
Dorgan  v.  Columbus,  12  Dec.  121. 

And  the  method  provided  by  the 
statute  is  exclusive.  Dorgan  v.  Co- 
lumbus, 12  Dec.  121,  123;  State  v. 
Ganson,  58  O.  S.  313. 

The  statutory  method  of  removal 
being  exclusive,  quo  warranto  will 
not  lie.    State  v.  Ganson,  58  0.  S.  313. 

(3)  Charges. — Charges  preferred 
against  a  public  officer  upon  which 
his  removal  is  sought,  must  be  spe- 
cific, and  state  facts  and  not  mere 
conclusions.  Kerr  v.  Hinkle,  12 
Dec.  365. 

As  to  definiteness  of  charges,  see 
State  ex  rel.  v.  Barrett,  22  C.  C. 
104. 

When  a  public  officer  may  be  re- 
moved for  specific  causes,  such  facts 
must  be  stated  as  in  judgment  of 
law  constitute  the  cause  relied  on, 
and  an  opportunity  afforded  the  of- 
ficer to  be  heard  before  he  can  be 
legally  removed.     State  v.   Hoglan, 


64  O.  S.  532;  State  v.  Sullivan,  58 
0.  S.  504. 

Incompetency  charged  need  not 
have  been  shown  by  acts  during  the 
term  in  which  the  officer  was  re- 
moved, but  may  have  been  evidenced 
by  acts  during  a  previous  term. 
State  v.  Fire  Commissioners,  26  O. 
S.  24. 

A  charge  setting  out  facts  show- 
ing that  the  officer  cursed  the  board 
and  refused  to  come  to  order,  would 
amount  to  a  charge  of  "  misconduct 
in  office."  State  ex  rel.  v.  Sutton,  4 
B.  608. 

It  is  not  necessary  that  the  word 
"  incompetency "  be  used  in  the 
charge,  when  this  is  the  ground,  if 
acts  evidencing  incompetency,  are 
shown.  State  v.  Fire  Commission- 
ers, 26  0.  S.  24. 

(4)  Notice. — Where  notice  is  re- 
quired, a  removal  without  notice  is 
a  nullity  and  the  effect  is  to  leave 
the  charges  pending.  State  ex  rel. 
v.  Sutton,  4  B.  608. 

As  to  what  is  notice  within  rea- 
sonable time.     lb. 

Where  the  officer  appears  before 
the  trial  board  and  asks  investiga- 
tion, he  waives  any  notice  that  may 
be  required,  and  gives  the  board 
jurisdiction.  State  ex  rel.  v.  Fire 
Commissioners,  26  O.  S.  24. 

(5)  Proceedings  in  trial. — A 
finding  "  from  the  evidence  and  also 
from  facts  within  personal  knowl- 
edge "  is  not  a  proper  exercise  of 
power,  unless  the  facts  are  shown 
and  an  opportunity  to  refute  them 
given.  State  v.  Sullivan,  58  0.  S. 
504,  516. 

The  power  to  suspend  pending 
proceedings  in  trial  is  not  incident 
to  the  power  to  remove,  but  must  be 
expressly  given.  State  ex  rel.  v. 
Sutton,  4  B.  608. 

As  to  degree  of  proof  necessary  to 
establish  misfeasance  or  malfeasance 


Code  §226]  election  and  removal  of  officers. 


511 


in  office,  see  Colburn  v.  Neufarth, 
16  B.  54. 

(6)    Remedies      of      officer.  — 

Where  power  to  remove  is  con- 
ferred on  executive  officer  by  law, 
injunction  will  not  lie  at  suit  of 
party  to  be  removed  to  restrain  tne 
removal.  Kerr  v.  Hinkle,  12  Dec. 
365;  Littleton  v.  Infirmary  Direct- 
ors, 18  C.  C.  891;  but  see  Weber 
v.  Bishop,  4  B.  775,  777. 

Courts  will  not  interfere  by  in- 
junction to  prevent  removal  of  an 
officer  on  the  ground  that  the  of- 
ficials charged  with  authority  to 
hear  and  determine  the  charges  and 
make  removal,  are  acting  from  im- 
proper motives.  Reeves  v.  Griffin, 
29  B.  281. 

Or,  on  the  ground  that  the  sta- 
tute under  which  the  trial  board 
holds  office  is  unconstitutional.     lb. 

Trial  cannot  be  enjoined  on  the 
ground  of  hostility  of  the  investi- 
gating committee.  Miller  v.  Di- 
rectors, 4  B.  690. 

The    officer,    in    case    of    removal 


wrongfully  has  a  remedy  by  man- 
damus to  compel  reinstatement. 
Reeves  v.  Griffin,  29  B.  281. 

But  the  action  of  a  board  in  re- 
moving an  officer  for  incompetency, 
is  an  exercise  of  discretion  vested  in 
the  board,  and  such  action  cannot  be 
reviewed  in  a  suit  in  mandamus  to 
compel  reinstatement.  State  ex  rel. 
v.  Fire  Commissioners,  26  O.  S.  24, 
27. 

An  injunction  may  be  allowed  at 
the  suit  of  a  taxpayer  to  restrain 
council  from  illegally  removing  an 
officer,  as  such  step  would  involve 
an  expenditure  of  money  and  would 
be  an  abuse  of  corporate  power. 
Dorgan  v.  Columbus,  12  Dec.  121. 

Courts  will  not  pass  upon  the 
sufficiency  of  the  facts  upon  which 
charges  are  made  for  the  removal 
of  public  officers.  State  v.  Haw- 
kins, 44  O.  S,  98;  State  v.  Bryson, 
44  O.  S.  457;  State  v.  McClain,  58 
0.  S.  313;  State  v.  Sullivan,  58  O. 
S.  504;  State  v.  Hoglan,  64  O.  S. 
532. 


Sec.  226.     [Removal  of  mayor  by  governor  of  state.]         In 

case  of  misconduct  in  office,  or  bribery,  or  any  gross  neglect  of 
duty,  gross  immorality  or  habitual  drunkenness  1  of  any  mayor, 
the  governor  of  the  state  shall  remove  him  from  office,  upon 
notice  and  after  affording  to  the  said  mayor,  a  full  and  fair  op- 
portunity to  be  heard  in  his  defense.2  The  proceedings  for 
his  removal  shall  bo  commenced  by  the  governor  putting  on  file 
in  his  office,  a  written  statement  of  the  alleged  causes  for  the 
mayor's  removal,  and  he  shall  cause  a  copy  of  said  statement 
to  be  served  upon  the  mayor  not  less  than  ten  days  before 
the  hearing  of  the  matter.  The  proceedings  had  by  the  gov- 
ernor upon  such  removal  shall  be  public  and  a  full  detailed 
statement  of  the  reasons  of  such  removal  shall  be  filed  by  the 
governor  in  the  office  of  the  secretary  of  state  and  shall  be  made 


512 


THE    OHIO    MUNICIPAL     CODE. 


[Code  §227 


a  matter  of  public  record  therein.  The  decision  of  the  gov- 
ernor, when  so  filed,  with  the  reasons  therefor,  shall  be  final 
and  pending  such  investigation  by  the  governor,  he  may  sus- 
pend the  mayor  for  a  period  of  thirty  days. 


(1)  Statutory  causes  and 
method  exclusive. —  The  causes 
for  removal  and  method  of  proced- 
ure given  in  the  statute,  exclude  all 
others.  Dorgan  v.  Columbus,  12 
Dec.  121  j  State  v.  Ganson,  58  O.  S. 
313. 

Misconduct     means     misconduct 


as  such  officer,  and  not  otherwise. 
Graham  v.  Stein,  18  C.  C.  770. 

Validity,  see  Opinion,  50  B.  114. 

(2)  See  generally,  for  matters  re- 
lating to  nature  of  power  of  remov- 
al, notice,  remedies,  etc.,  notes  un- 
der §  225  supra. 


Sec.  227.  [Council  shall  determine  number,  compensation  and 
amount  of  bond  of  officers,  clerks  and  employes  in  any  department 
of  city  government;  exception.]  Except  in  the  department  of 
public  service,  council  shall  by  ordinance  or  resolution,  except 
as  otherwise  provided  in  this  act,1  determine  the  number  of 
officers,  clerks  and  employes  in  any  department  of  the  city 
government,2  and  shall  fix  by  ordinance  or  resolution  their  re- 
(  spective  salaries  3  and  compensation  and  the  amount  of  bond  to 
be  given  for  each  officer,  clerk  or  employe  in  any  department  of 
the  city  government,  if  any  be  required,  and  said  bonds  shall 
be  made  by  such  officer,  clerk  or  employe  with  surety  subject  to 
the  approval  of  the  mayor  of  said  city. 


(1)  Other    exceptions. —  As    to 

board  of  health,  see  §  189  of  the 
Code  and  sections  of  R.  S.  therein 
re-enacted;  university  directors,  § 
217;  library  trustees,  §  218;  trus- 
tees of  public  affairs  in  villages,  § 
2409  R.  Sv  re-enacted  in  §  205  of 
the  Code,  page  459. 

(2)  Combining  offices  or  ap- 
pointments, see  note  (2)  to  §  128 
of  the  Code,  page  328. 

Village  council  to  fix  salaries, 
«tc— See  §§  195  and  197  of  the 
Code,  page  445. 


(3)  Character  of  salary.— Sal- 
ary is  not  a  property  right  of  an 
officer  and  injunction  will  not  lie 
to  protect  it.  Reeves  v.  Griffin,  29 
B.  281. 

Liability  for  salaries  of  em- 
ployes, fixed  by  an  ordinance  does 
not  attach  to  the  municipality  un- 
less services  are  actually  performed, 
and  this  even  though  they  are  per- 
mitted to  report  for  duty  and  are 
not  discharged  or  removed.  State 
v.  Philbrick,  13  Dec.  158. 

Officer  suspended  is  not  entitled 


Code  §227]   election  and  removal  of  officers. 


513 


to  salary  during  time  of  suspension. 
Steubenville  v.  Culp,  38  O.  S.  18. 

Officer  not  qualifying. —  An  offi- 
cer who  has  not  qualified  is  not  en- 
titled to  salary.  State  ex  rel.  v. 
Eshelby,  2  C.  C.  468. 

De  facto  officer  is  not  entitled  to 
maintain  an  action  for  the  salary 
of  the  office  for  the  period  of  his 
service.  Ermston  v.  Gincinnati,  7 
N.  P.  635;  State  ex  rel.  v.  Newark, 
6  N.  P.  523;  Knorr  v.  Bd.  of  Ed., 
9  B.  182.  But  see  Cincinnati  v. 
Green,  2  C.  S.  C.  R.  278. 

But  if  a  municipality  has  al- 
ready paid  a  de  facto  officer  the 
salary  for  the  time  he  served,  it 
cannot  be  compelled  to  pay  a  de 
jure  officer,  who  ousts  the  incum- 
bent, for  the  same  period.  State  v. 
Eshelby,  2  C.  C.  468. 

Where  no  salary  fixed. —  There 
are  no  fees  or  salaries  attached  lo 
an  office  except  such  as  are  pre- 
scribed by  statute  or  ordinance.  If 
no  fees  or  salary  have  been  fixed, 
the  person  filling  the  office  cannot 
claim  compensation,  even  though  hia 
services  were  rendered  at  the  re- 
quest of  a  superior.     Halpin  v.  Cin- 


cinnati, 2  Gaz.  386.  Lease's  Claim, 
4  C.  C.  3 ;  Strawn  v.  Commissioners, 
47  0.  S.  404,  408;  Clark  v.  Com- 
missioners, 58  O.  S.  107;  Butler 
Co.  v.  Welliver,  12  C.  C.  440;  Clark 
v.  Lucas  Co.,  14  C.  C.  349;  Tuall  v. 
Lucas  Co.,  3  N.  P.  112. 

And  if  paid  for  services  where  no 
compensation  is  provided  for  the 
office,  the  money  paid  may  be  recov- 
ered back.  Swartz  v.  Wayne  Co., 
35  B.  275;  Jones  v.  Commissioners, 
57  O.  S.  189. 

Extra  compensation.  —  Where 
salaries  and  fees  are  regulated,  offi- 
cer cannot  charge  for  other  services 
or  claim  any  fees  by  implication. 
Debolt  v.  Cincinnati  Township,  7  O. 
S.  237. 

Recovery  of  overpayment. — 
As  to  how  overpayment  to  officer 
may  be  recovered,  see  Jones  v.  Com- 
missioners, 57  O.  S.  189;  Ridenour 
y.  State,  14  C.  C.  393,  400;  State  v. 
Brown,  20  C.  C.  57. 

Construction  of  ordinance. — 
For  construction  of  ordinances  fix- 
ing salaries  under  previous  laws, 
see  Hatch  v.  Cincinnati,  17  O.  S.  48. 


FORM  OF  GENERAL  ORDINANCE  FIXING  SALARIES  AND  BONDS 
OF  OFFICERS  AND  ORGANIZING  DEPARTMENTS. 


Ordinance  No. 


To  fix  the  salaries  and  bonds  of  certain  officers,  to  determine  the  number  of 

assistants,  clerks  and  employes  in  certain  departments 

and  to  fix  their  salaries  and  bonds. 


Be  it  ordained  by  the  council  of  the  city  of ,. 

State  of  Ohio : 

Sec.  1.      (Mayor's  office) .     That  the  salary  of  the  mayor  shall  be 

dollars  per  annum,  payable ,  and  he  shall  give  bond  in  the  sum 

of dollars.  In  the  office  of  the  mayor  there  shall  be  one  sec- 
retary, one  clerk,  one  stenographer  and  one  messenger,  who  shall  be  ap- 
pointed by  the  mayor,  and  perform  such  appropriate  duties  relating  to 


514  the  ohio  municipal  code.  [Code  §228 

the  mayor's  office  as  shall  from  time  to  time  be  assigned  by  him.  They 
shall  receive  the  following  salaries,  payable 

Secretary dollars  per  annum. 

Etc.,  etc. 

Sec.  2.      (Auditor's  office.) 

(Add  sections  for  other  departments  desired  to  be  provided  for.) 

Sec.  3.  That  all  ordinances  or  parts  of  ordinances  inconsistent  herewith 
be  repealed  and  this  ordinance  take  effect  from  and  after  the  earliest  period 
allowed  by  law. 

Passed 19 

President  of  Council. 
Attest : 

Clerk. 

Note:  The  above  form  of  ordinance  may  be  used  in  fixing  salaries  and 
bonds  and  in  organizing  all  departments  of  the  city  service  for  which  coun- 
cil is  authorized  to  provide.  The  number  of  employes  and  salaries  in  the 
departments  of  public  service,  health,  university  and  library  are  within  the  ex- 
clusive control  of  the  officers  in  charge  thereof.  See  §§  145,  189,  217  and 
218  of  the  Code,  and  §  2115  R.  S.,  re-enacted  in  §  189  of  the  Code. 

Changes  made  in  salaries  already  fixed  will  not  go  into  effect  until  the 
expiration  of  existing  terms  of  the  officers  affected.     (§  126.) 


Sec.  £28.  [Vacancies;  how  filled.]1  In  case  of  death,  resigna- 
tion, removal  or  disability  of  any  officer  or  director  in  any 
department  of  any  municipality,  the  mayor  of  such  city  shall 
fill  the  vacancy  by  appointment,  and  said  appointment  shall 
continue  for  the  unexpired  term  and  until  a  successor  shall  be 
duly  elected  and  qualified,  or  until  such  disability  is  removed.2 
[1904,  April  7,  97  v.  78.] 

( 1 )  Old  section. —  Compare  old  but  the  incumbent  holds  over.  State 
§    1713  R.   S.,  repealed.  ex  rel.  v.  Wright,  56  O.  S.  540,  554; 

(2)  When  vacancy  occurs. —  State  ex  rel.  v.  Kearns,  47  O.  S.  566. 
Where  the  law  provides  that  an  And  the  incumbent  holds  over 
elective  officer's  term  continues  un-  even  though  he  was  an  appointee  to 
til  his  successor  is  elected  and  qual-  fill  a  vacancy.  State  ex  rel.  v. 
ified,  if  a  successor  is  not  regularly  Darby,  12  C.  C.  235  (aff'd  52  O.  S. 
elected,  a  vacancy  is  not  created,  611).  But  see  State  v.  Corey,  4 
which  can  be  filled  by  appointment,  W.  L.  M.  563. 


Code  §  229]     election  and  removal  of  officers. 


515 


Death  before  beginning  of  term, 
but  after  election  and  qualifying 
would  create  a  vacancy.  State  ex 
rel.  v.  McGregor,  44  O.  S.  628.  But 
such  vacancy  does  not  begin  until 
end  of  term  of  incumbent.  State 
ex  rel.  v.  Dahl,  55  O.  S.  195. 

But  death  on  election  day,  before 
the  polls  are  closed  would  not 
create  a  vacancy.  State  ex  rel.  v. 
Speidel,  62  O.  S.  156. 

Council,  though  given  the  right  to 
judge  of  the  election  and  qualifica- 
tion of  its  own  members,  has  not 
the  power  to  decide  whether  there 
is  any  vacancy  or  office  to  be  filled. 
State  ex  rel.  v.  Darby,  12  C.  C.  235 
(aff'd  52  O.  S.  6x1). 

When  the  appointment  to  an  office 
is  a  nullity  for  the  reason  that  the 
appointee  is  by  statute  ineligible  to 
such  office,  a  legal  appointment  to 
such  office  may  be  made,  without 
first  ousting  such  first  appointee  by 


proceedings  in  quo  warranto.  State 
ex  rel.  v.  Craig,  69  O.  S.,  236. 

Vacancy  by  resignation,  occurs 
at  date  of  resignation,  and  not  when 
resignation  is  accepted.  Reiter  v. 
State,  51  O.  S.  74. 

No  vacancy  where  incumbent 
can  hold  over. —  There  is  no  vacan- 
cy as  long  as  there  is  an  incumbent 
who  can  legally  hold  over  until  his 
successor  is  elected  and  qualified. 
State  ex  rel.  v.  McCracken,  51  O.  S. 
123,  129;  State  ex  rel.  v.  Thompson, 
9  C.  C.  161. 

Term  of  appointee. —  Compare 
§  11  R.  S.  under  Officers  in  Part 
II.  The  fact  that  the  commission 
was  made  out  for  the  wrong  period 
of  time,  will  not  abridge  or  extend 
the  term  of  the  appointee  to  vacan- 
cy. State  ex  rel.  v.  Darby,  12  C.  C. 
235  (aff'd  52  O.  S.  611);  State  ex 
rel.  v.  Slough,  12  C.  C.  105,  111. 


Sec.  229.  [Declaration  of  unconstitutionality  of  one  section  of 
this  act  shall  not  affect  validity  of  any  other  section  not  so  held 
invalid.]  In  the  event  that  any  section  or  part,  of  a  section 
included  within  the  provisions  of  this  act  shall  be  held  by 
any  court  to  be  invalid  or  unconstitutional,  such  decision  shall 
not  be  held  to  invalidate  or  impair  the  validity,  force  or  effect 
of  any  other  section  or  part  of  a  section  of  this  act,  except  the 
section  or  part  of  a  section  so  held  invalid  or  unconstitutional 
by  such  court.1 


(1)     Effect    of    unconstitution- 
ality   of    part    of    an    act.— The 

rule  as  to  the  effect  of  the  uncon- 
stitutionality of  a  particular  sec- 
tion or  part  of  an  act  upon 
other  sections  of  the  same  act, 
is  that  if  the  unconstitutional 
part  is  so  inseparably  connected 
with  other  sections  as  to  raise  a  pre- 
sumption that  the  legislature  would 
not  have  passed  the  latter  without 
the  former,  all  sections  so  connected 
are  void.  State  v.  Perry  Co.,  5, 
0.  S.  497;  Monroe  v.  Collins,  17  O. 
S.  665,  684;  Bowles  v.  State,  37 
O.  S.  35;  Exchange  Bank  v.  Hines, 


3  O.  S.  1;  Taylor  v.  Ross  Co.,  23 
O.  S.  22;  R.  R.  v.  Commissioners, 
31  0.  S.  338;  Treasurer  v.  Bank,  47 
O.  S.  503;  State  v.  Frame,  39  O.  S. 
399;  State  v.  Buckley,  60  O.  S.  273. 
See  also  Stevens  v.  State,  61  0.  S. 
597;  State  v.  Kinney,  56  O.  S.  721; 
Pump  v.  Commissioners,  69  O.  S. 
448. 

The  rejection  of  some  of  the  pro- 
visions of  a  statute  for  unconstitu- 
tionality, will  not  vary  the  sense  or 
meaning  of  its  remaining  provisions, 
which  are  to  be  construed  as  well 
in  the  light  of  those  rejected,  as  of 
those  which  remain.  State  v.  Dom- 
baugh,  20  0.  S.  167. 


516  the  ohio  municipal  code.      [Code  §§230,  231 

Sec.  230.  [Election  and  term  of  police  judge  and  clerk;  vacan- 
cies in  office  of;  how  filled.]  Except  where  otherwise  provided 
in  the  acts  creating  police  courts  and  fixing  the  terms  of 
judges  and  clerks  thereof,  which  acts  are  herein  made  to  remain 
in  full  force  and  effect,  such  judges  and  clerks  shall  be  elected 
in  each  municipality  where  such  officers  are  now  provided  for 
by  law,  at  the  first  election  held  under  this  act  on  the  first 
Monday  in  April,  1903,  for  terms  of  three  years,  and  thereafter 
their  successors  shall  be  elected  for  a  like  term;  and  except  as 
otherwise  provided  in  the  acts  creating  said  courts,  vacancies  in 
the  office  of  judge  of  the  police  court  shall  be  filled  by  the 
governor  for  the  unexpired  term,  and  vacancies  in  the  office 
of  clerk  of  the  police  court  shall  be  filled  by  the  mayor  for  the 
unexpired  term.1 

(1)  See  §§  190,  191,  192  (city  of  the  Code  (village  police  courts) 
police  courts)   and  §§  208,  209,  210       and  notes  under  such  sections. 

Sec.  231.  [When  this  act  shall  take  effect.]  For  the  purpose 
of  carrying  into  effect  the  powers  and  duties  conferred  and  im- 
posed upon  present  councils,  boards  of  legislation,  or  other  legis- 
lative bodies,  by  the  provisions  of  this  act,  and  for  the  purpose 
of  conducting  the  first  election  to  be  held  in  every  municipality 
hereunder,  and  of  preparing  for  the  change  in  the  organization 
of  municipalities  herein  provided  for,  this  act  shall  take  effect 
from  and  after  the  fifteenth  day  of  November,  1902 ;  and  for 
all  other  purposes  this  act,  and  every  portion  of  the  same,  in- 
cluding the  repeal  of  existing  laws,  shall  take  effect  on  the  first 
Monday  in  May,  1903,1  and  the  following  sections  of  the  Ke- 
vised  Statutes  of  Ohio  are  hereby  repealed: 

(1)   When  repeals  go  into  tU  Effect  on  curative  provisions  in  §§ 

feet.— A  statute  providing  that  it  31  and  137  of  the  Code,  see  Horst- 

shall   "  go    into    effect   on   May    1st  man  v.  St.  Ry.  Co.,  13  Dec.  378. 

next,"  postpones  the  repealing  clause  When     status     of     municipalities 

as    well    as   its   general    provisions.  changed. —  The  status  of  cities  and 

McArthur  v.  Franklin,  16  O.  S.  193.  villages  and  their  governments  was 

Repealing  clause  of  new  Code  does  not  changed  by  the  municipal  code 

not    go    into    effect    until   the    first  until  after  the  April  election  follow- 

Monday    in    May,    1903.     State    v.  ing  the  passage  of  the  Code.     Pol- 

Barr,  13  Dec.  382.  lock  v.  Toland,  25  C.  0.  75. 


Code  §231] 


REPEALS. 


517 


Repeals.  1537-1,  1538,  1539,  1540,  1541,  1542,  1543,  1545, 
1545-1,  1545-2,  1545-3,  1545-4,  1545-5,  1545-6,  1545-7,  1545-8, 
1545-9,  1545-10,  1545-11,  1545-12,  1545-13,  1545-14,  1545-15, 


1545-16 
1545-22 
1545-28 
1545-34 
1545-40 
1545-44 
1545-50 
1545-56 
1545-62 
1545-68 
1545-74 
1545-80 
1545-86 
1545-90 
1545-96 
1545-102 


1545-17, 
1545-23, 
1545-29, 
1545-35, 
1545-41, 
1545-45, 
1545-51, 
1545-57, 
1545-63, 
1545-69, 
1545-75, 
1545-81, 
1545-87, 
1545-91, 
1545-97, 


1545-18, 
1545-24, 
1545-30, 
1545-36, 
1545-42, 
1545-46, 
1545-52, 
1545-58, 
1545-64, 
1545-70, 
1545-76, 
1545-82, 

1545-88, 
1545-92, 

1545-98, 


1545-19, 
1545-25, 
1545-31, 
1545-37, 
1545-43, 
1545-47, 
1545-53, 
1545-59, 
1545-65, 
1545-71, 
1545-77, 
1545-83, 

1545-88a, 
1545-93, 

1545-99, 


1545-20, 
1545-26, 
1545-32, 
1545-38, 

1545-43a, 
1545-48, 
1545-54, 
1545-60, 
1545-66, 
1545-72, 
1545-78, 
1545-84, 

1545-886, 
1545-94, 
1545-100, 


1545-21, 
1545-27, 
1545-33, 
1545-39, 
1545-436, 
1545-49, 
1545-55, 
1545-61, 
1545-67, 
1545-73, 
1545-79, 
1545-85, 
1545-89, 
1545-95, 
1545-101, 
1545-107, 


1545-103,  1545-104,  1545-105,  1545-106, 
1545-108,  1545-109,  1545-110,  1545-111,  1545-112,  1545-113, 
1545-114,  1545-115,  1545-116,  1545-117,  1545-118,  1545-119, 
1545-120,  1545-121,  1545-122,  1545-123,  1545-124,  1545-125, 
1545-126,  1545-127,  1545-128,  1545-129,  1545-130,  1545-131, 
1545-132,  1545-133,  1545-134,  1545-135,  1545-136,  1545-137, 
1545-138,  1545-139,  1545-140,  1545-141,  1545-142,  1545-142a, 
1545-143,  1545-144,  1545-145,  1545-146,  1545-147,  1545-148, 
1545-149,  1545-150,  1545-151,  1545-152,  1545-153,  1545-154, 
1545-155,  1545-156,  1545-157,  1545-158,  1545-159,  1545-160, 
1545-161,  1545-162,  1545-163,  1545-164,  1545-165,  1545-165a, 
1545-1656,  1545-165c,  1545-165d,  1545-165e,  1545-165/, 
1545-165^,  1545-165/i,  1545-165^  1545-166,  1545-167, 
1545-168,  1545-169,  1545-170,  1545-171,  1545-172,  1545-173, 
1545-174,  1545-175,  1545-176,  1545-177,  1545-178,  1545-179, 
1545-180,  1545-181,  1545-182,  1545-183,  1545-184,  1545-185, 
1545-186,  1545-187,  1545-188,  1545-189,  1545-190,  1545-191, 
1545-192,  1545-193,  1545-194,  1545-195,  1545-196,  1545-197, 
1545-198,  1545-199,  1545-200,  1545-201,  1545-202,  1545-203, 
1545-204,  1545-205,  1545-206,  1545-207,  1545-208,  1545-209, 
1545-210,  1545-211,  1545-212,  1545-213,  1545-214,  1545-215, 
1545-216,  1545-217,  1545-218,  1545-219,  1545-220,  1545-221, 
1545-222,  1545-223,  1545-224,  1545-225,  1545-226,  1545-227, 
1545-228,  1545-229,  1545-230,  1545-231,  1545-232,  1545-233, 
1545^234,  1545-235,  1535-236,  1545-237,  1545-238,  1545-239, 
1545-240,  1545-241,  1545-242,  1545-243,  1545-244,  1545-245, 
1545-246,  1545-247,  1545-248,  1545-249,  1545-250,  1545-251, 


518  the  ohio  municipal  code.     [Code  §231 

1545-252,  1545-253,  1545-254,  1545-255,  1545-256,  1545-257, 
1545-258,  1545-259,  1545-260,  1545-261,  1545-262,  1545-263, 
1545-264,  1545-265,  1545-266,  1545-267,  1545-268,  1545-269, 
1545-270,  1545-271,  1545-272,  1545-273,  1545-274,  1545-275, 
1545-276,  1545-277,  1545-278,  1545-279,  1545-280,  1545-281, 
1545-282  (1),  1545-282  (2),  1545-283,  1545-284,  1545-285, 
1545-286,  1545-287,  1545-288,  1545-289,  1545-290,  1545-291, 
1545-292,  1545-293,  1545-294,  1545-295,  1545-296,  1545-297, 
1545-298,  1545-299,  1545-300,  1545-301,  1545-302,  1545-303, 
1545-304,  1545-305,  1545-306,  1545-307,  1545-308,  1545-309, 
1545-310,  1545-311,  1545-312,  1545-313,  1545-314,  1545-315, 
1545-316,  1545-317,  1545-318,  1545-319,  1545-320,  1545-321. 
1545-322,  1545-323,  1545-324,  1546,  1547,  1548,  1549,  1550, 
1551,  1552,  1572,  1573,  1574,  1575,  1576,  1577,  1578,  1579, 
1580,  1581,  1582,  1583,  1584,  (1584-1),  (1584-2),  1585,  1586, 
1587,  1588,  1588a,  1588o-l,  1617,  1618,  1619,  1620,  1621, 
1622,  1623,  1624,  1625,  1626,  1627,  1627a,  16276,  1627c, 
1627d,  1628,  1629,  1630,  1631,  1632,  1633,  1634,  1635,  1636, 
1637,  1638,  1639,  1640,  1641,  1642,  1643,  1644,  1645,  1646, 
1647,  1655, 1655a,  16556, 1656,  1657,  1658,  1660,  1661,  1662, 
1663,  1664,  1665,  1666,  1666-1,  1666-2,  1667,  1668,  1669, 
1670,  1671,  1672,  1672b,  1673,  1673a,  1674,  1675,  1676, 
16766,  1677,  1679,  1680,  16806,  1681,  1682,  1683,  1683a, 
1684,  1685,  1686,  1687,  1688,  1690,  1692,  (1692-1),  1692a, 
16926,  1692c,  1692d,  1692c,  1692/(1),  1692/(2),  1692#, 
1692^,  1693,  1694a,  1699-1,  1699-2,  1699-3,  1706,  1707, 
1707-1,  1707-2,  1707-3,  17076,  I707c(2),  I707d,  1707^-1, 
1707^-2,  1707d-3,  1707J-4,  1707^-5,  1707d-6,  1707^-7, 
1707d-8,  l707d-9,  1707d-10,  1707^-11,  1707(2-12,  I707d-13, 
I707d-14,  1707a7-15,  1707^-16,  l707aVL7,  1707d-18,  1707aVL9, 
1707d-20,  1707J-21,  1707d-22,  l707d-23,  l707d-24,  1707d-25, 
1707^-26,  1707d-27,  1707d-28,  1707d-29,  1707d-30,  I707a7-31, 
1707d-32,  l707d-33,  1707^-34,  1707^-36,  1707d-37,  1707d-38, 
1707d-39,  1707d-40,  l707d-41,  l707d-42,  1707d-43,  1707d-44, 
1707d-45,  1707a7-46,  1707d-47,  l707d-48,  l707d-49,  1707  d-50, 
1707d-51,  1707c,  1707/,  1707/-1,  1707/-2,  1707/-3,  1707/-4, 
1707/-5,  1707/-6,  1707/-7,  1707/-8,  1707/-9,  1707/-10, 
1707/-11,  1707/-12,  1707/-13,  1707/-14,  1707/-15,  1707/-16, 
1707/-17,  1707/-18,  1707/-19,  1707/-20,  1707/-21,  1707/-22, 
1707/-23,  1707/-24,  1707/-25,  1707/-26,  1707/-27,  1707/-28, 
1707/-29,  1708,  1708a,  17086,  1708c,  1709,  1709a,  17096, 
1710,  1711,  1712,  1713,  1714,  1715,  1716,  1717,  1719,  1720, 
1720a,  17206,  1720c-(l),  l720c-(2),  1720-1,  1720-2,  1720-3, 
1720-4,  1720-5,  1720-6,  1721-1,  1721-2,  1722,  1724,  1744a, 


Code  §231] 


REPEALS. 


519 


1744&,  1749,  1753,  1754,  1755,  1764,  1765,  1765a,  1765-1, 
1765-2,  1766,  1770,  1770-1,  1771-1,  1771-2,  1771-3,  1772, 
1773-1,  1781,  1781a,  1784-1,  1784-2,  1784-3,  1784-4,  1784-5, 
1784-6,  1784-7,  1784-8,  1784-9,  1784-10,  1784-11,  1784-12, 
1784-13,  1784-14,  1784-15,  1784-16,  1784-17, 


1784-19, 
1784-25, 
1784-31, 
1784-37, 
1784-43, 
1784-49, 
1784-55, 
1784-61, 


1784-20, 
1784-26, 
1784-32, 
1784-38, 
1784-44, 
1784-50, 
1784-56, 


1784-21, 
1784-27, 
1784-33, 
1784-39, 
1784-45, 
1784-51, 
1784-57, 


1784-22, 
1784-28, 
1784-34, 
1784-40, 
1784-46, 
1784-52, 
1784-58, 


1784-23, 
1784-29, 
1784-35, 
1784-41, 
1784-47, 
1784-53, 
1784-59, 


1784-18, 
1784-24, 
1784-30, 
1784-36, 
1784-42, 
1784-48, 
1784-54, 
1784-60, 


1847,  1847-1,  1847-2,  1847-3,  1847-4,  1855,  1856, 
1857,  1858,  1859,  1860,  1861,  1862,  1863,  1870,  1871,  1872, 
1873,  1875,  1876,  1877,  1878,  1879,  1880,  1881,  1882,  1885, 
1886,  1887,  1888,  1889,  1890,  1891,  1892,  1893,  1894,  1895, 
1896,  1897,  1898,  1899,  1900,  1900-1,  1901,  1902,  1903, 
1903-1,  1904,  1905,  1905a,  1906,  1910,  1911,  1912,  1913, 
1914,  1915,  1916,  1917,  1918,  1919,  1920,  1921,  1922,  1923, 
1924,  1925,  1928,  1929,  1929-1,  1930,  1931,  (1931-1), 
(1931-2),  1932,  1933,  1934,  1935,  1936,  1937,  1938,  1939, 
1940,  1941,  1942,  1943,  1944,  1945,  1945-1,  1945-2,  1946, 
1947,  1948,  1949,  1950,  1951,  1952,  1953,  1954,  1955,  1956, 
1957,  1958,  1959,  1960,  1961,  1962,  1963,  1964,  1965,  1966, 
1967,  1968,  1969,  1970,  1971,  1972,  1973,  1974,  1975,  1976, 
1977,  1978,  1979,  1980,  1981,  1982,  1983,  1984,  1985,  1986, 
1986a,  1989,  1990,  1991,  1992,  1993,  1994,  1995,  1996,  1997, 
1997-1,  1998  (1),  1998  (2),  1999,  2000,  2001,  2002,  2003, 
2004,  2005,  2006,  2007,  2007-1,  2008,  2009,  2010,  2011, 
2012  (1),  2012  (2),  2013  (1),  2013  (2),  2014  (1),  2014  (2), 
2015,  2016,  2017,  2018,  2019,  2020,  2021  (1),  2021  (2), 
2022  (1),  2022  (2),  2022-1,  2022-2,  2022-3,  2022-4,  2022-5, 
2022-6,  2022-7,  2022-8,  2022-9,  2022-10,  2022-11,  2022-12, 
2022-13,  2022-14,  2022-15,  2022-16,  2022-17,  2022-18, 
2022-19,  2022-20,  2022-21,  2022-22,  2022-23,  2022-24, 
2022-25,  2022-26,  2022-27,  2022-28,  2022-29,  2022-30, 
2022-31,  2022-32,  2022-33,  2022-34,  2022-35,  2022-35a, 
2022-356,  2022-35c,  2022-35d,  2022-35e,  2022-35/,  2022-35#, 
2023,  2024,  2025,  2026,  2027,  2028,  2029,  2030,  2030-i, 
2030-2,  2030-3,  2030-4,  2030-5,  2030-6,  2030-7,  2030-8,  2030-9, 
2030-10,  2030-11,  2030-12,  2030-13,  2030-14,  2030-15, 
2030-16,  2030-17,  2030-18,  2030-19,  2030-20,  2030-21, 
2030-22,  2030-23,  2031,  2032,  2033,  2034,  2035,  2036,  2037, 
2038,  2039,  2040,  2041,  2042,  2043,  2044,  2045,  2046,  2047, 


520  the  ohio  municipal  code.     [Code  §231 

2048,  2049,  2079,  2080,  2082,  2083,  2084,  2085,  2085-1,  2086, 
2087,  2088,  ^2089,  2090-1,  2090-2,  2090-3,  2090-4,  2090-5, 
2090-6,  2090-7,  2091,  2095,  2096,  2096a,  2096a-l,  2097,  2098, 
2099a,  20996,  2099c,  2100a,  21006,  2100a1,  2100e,  2104, 
2112-1,  2112-2,  2112-3,  2112-4,  2112-5,  2112-6,  2112-7,  2112-8, 
2112-9,  2112-10,  2112-11,  2112-12,  2112-13,  2112-14, 
2112-15,  2112-16,  2112-17,  2112-18,  2112-19,  2167-7,  2167-8, 
2170,  2170-1,  2186,  2187,  2188,  2189,  2190,  2191,  2192,  2193, 
2194,  2195,  2196,  2197,  2198,  2204,  2205,  2206,  2207,  2208, 
2209,  2210,  2211,  2212,  2213,  2214,  2215,  2216,  2217,  2218, 
2219,  2220,  2221,  2222,  2223,  2224,  2224a,  22246,  2225, 
2226,  2227,  2228,  2229,  2230,  2231,  2231-1,  2232,  2232a, 
2233,  2233-1,  2233-2,  2233-3,  2233-4,  2233-5,  2234,  2235, 
2.235a,  2236,  2237,  2238,  2239,  2240,  2241,  2242,  2243,  2244, 
2245,  2246,  2247,  2248,  2249,  2250,  2251,  2252,  2253,  2254, 
2255,  2256,  2257,  2258,  2259,  2260,  2261,  2262,  2263,  2264, 
2264a,  22646,  2265,  2266,  2267,  2269,  2270,  2270a,  22706, 
2270c,  2270a7,  2270c,  2270/,  2271,  2272,  2273,  2274,  2275, 
2275a,  2275c,  2276,  2277,  2280,  2281,  2283,  2289a,  22896, 
2289c,  2289a7,  2292,  2292a,  2293,  2293a,  22936(1), 
22936(2),  2293c,  2293^(1),  2293d(2),  2293d(3),  2293c(l), 
2293c(2),  2293/(1),  2293/(2),  2293/(3),  2293/(4),  2293#, 
22937*,  2293/i-l,  22937i-2,  22937i-3,  2293-1,  2293-2,  2293-3, 
2293-4,  2293-5,  2293-6,  2293-7,  2293-8,  2293-9,  2293-10, 
2293-11,  2293-12,  2293-13,  2293-14,  2293-15,  2293-16, 
2293-17,  2293-18,  2293-19,  2293-20,  2293-21,  2293-22, 
2293-23,  2293-24,  2293-25,  2293-26,  2293-27,  2293-28, 
2293-29,  2293-30,  2293-31,  2293-32,  2293-33,  2293-34, 
2293-35,  2293-36,  22"93-37,  2293-38,  2293-39,  2293-40, 
2293-41,  2293-42,  2293-43,  2293-44,  2293-45,  2293-46, 
2293-47,  2293-48,  2293-49,  2293-50,  2293-51,  2293-52, 
2293-53,  2293-54,  2293-55,  2293-56,  2293-57,  2293-58, 
2293-59,  2293-60,  2293-61,  2293-62,  2293-63,  2293-64, 
2293-65,  2293-66,  2293-67,  2293-68,  2293-69,  2293-70, 
2293-71,  2293-72,  2293-73,  2293-74,  2293-75,  2293-76, 
2293-77,  2293-78,  2293-79,  2293-80,  2293-81,  2293-82, 
2293-83,  2293-84,  2293-85,  2293-86,  2296,  2300-1,  2300-2, 
2300-3,  2303,  2303a,  2304,  2305,  2306,  2306-1,  2306-2,  2306-3, 
2306-4,  2306-5,  2306-6,  2306-7,  2306-8,  2306-9,  2307,  2308, 
2309,  2310,  '  2310a,  2311,,  2312,  2314-1,  2314-2,  2314-3, 
2314-15a,  2314-156,  2314-15c,  2314-1507,  2314-15c,  2314-15/, 
2314-15^,  2314-157i,  2314-15*',  2314-15;,  2314-15&,  2314-157, 
2314-15m,  2314-16,  2314-17,  2314-18,  2314-19,  2314-20, 
2314a,  23146,  2315,  2316,  2317,  2319,  2320,  2322,  2323, 


Code  §231]  repeals.  521 

2324,  2325,  2328,  2329,  2329a,  2330,  2330a,  23306,  2330c 
2331,  2333,  2333a,  2334,  2334a,  23346,  2334c,  2334-1 
2334-2,  2334-3,  2334-4,  2334-5,  2335,  2336,  2337,  2338,  2339 
2340,  2341,  2342,  2343,  2344,  2345,  2346,  2347,  2348,  2349 
2350,  2351,  2352,  2353,  2354,  2355,  2356,  2357,  2358,  2359 
2360,  2361,  2362,  2363,  2364,  2365,  2365-3,  2365-4,  2365-5 
2365-6,  2365-7,  2365-8,  2365-9,  2365-10,  2365-11,  2365-12 
2365-13,  2365-14,  2365-15,  2366,  2367,  2368,  2368a,  2368a-l 
2368a-2,  2368a-3,  2369,  2370,  2370a,  2371,  2372,  2373,  2374 
2375,  2376,  2377,  2378,  2379,  2380,  2380a,  2381,  2382,  2383 
2384,  2385,  2386,  2387,  2388,  2389,  2390,  2391,  2392,  2393 
2394,  2395,  2396,  2397,  2398,  2398a,  2399,  2400,  2401,  2402 
2403,  2404-1,  2404-2,  2404-3,  2404-4,  2405,  2406,  2406a 
24066,  2406c,  2406-1,  2406-2,  2406-3,  2406-4,  2406-5 
2406-6,  2406-7,  2406-8,  2406-9,  2406-10,  2406-11,  2406-12 
2406-13,  2406-14,  2406-15,  2406-16,  2406-17,  2406-18 
2406-19,  2406-20,  2406-21,  2406-22,  2406-23,  2406-24 
2406-25,  2406-26,  2406-27,  2406-28,  2406-29,  2406-30 
2406-31,  2406-32,  2406-33,  2406-34,  2406-35,  2406-36 
2406-37,  2406-38,  2406-39,  2406-39a,  2406-396,  2406-39c 
2406-39d,  2406-39e,  2406-39/,  2406-39^,  2406-39&,  2406-39i 
2406-39;,  2406-39&,  2406-39?,  2406-39m,  2406-39n,  2406-40 
2406-41,  2406-42,  2406-43,  2406-44,  2406-45,  2406-46 
2406-47,  2406-48,  2406-49,  2406-50,  2406-51,  2406-52 
2406-53,  2406-54,  2406-55,  2406-56,  2406-57,  2406-58 
2406-59,  2406-60,  2406-61,  2406-62,  2406-63,  2406-64 
2406-65,  2406-66,  2406-67,  2406-68,  2406-69,  2406-70 
2406-71,  2406-72,  2406-73,  2406-74,  2406-75,  2406-76 
2406-77,  2406-78,  2406-79,  2406-80,  2406-81,  2406-82 
2406-83,  2406-84,  2406-85,  2406-86,  2406-87,  2406-88 
2406-89,  2406-90,  2406-91,  2406-92,  2406-93,  2406-94 
2406-95,  2406-96,  2406-97,  2406-98,  2406-99,  2406-100 
2406-101,  2406-102,  2406-103,  2406-104,  2406-105,  2406-106 
2406-107,  2406-108,  2406-109,  2406-110,  2406-111,  2406-112 
2406-113,  2406-114,  2406-115,  2406-116,  2406-117,  2406-118 
2406-119,  2406-120,  2406-121,  2406-122,  2406-123,  2406-124 
2406-125,  2406-126,  2406-127,  2406-128,  2406-129,  2406-130 
2406-131,  2406-132,  2406-133,  2406-134,  2406-135,  2406-136 
2406-137,  2406-138,  2406-139,  2406-140,  2406-141,  2406-142 
2406-143,  2406-144,  2406-145,  2406-146,  2406-147,  2406-148 
2406-149,  2406-150,  2408,  2408a,  2411a,  2411-2,  2411-3 
2417a,  2435-19,  2435-20,  2435-21,  2435-22,  2435-23,  2435-24 
2435-25,  2435-26,  2435-27,  2435-28,  2435-29,  2435-30 
2435-31,  2435-32,  2435-33,  2435-34,  2435-35,  2435-36 


522  the  ohio  municipal  code.     [Code  §231 

2435-37,  2435-38,  2435-39,  2435-40,  2435-41,  2435-42, 
2435-43,  2435-44,  2435-45,  2435-46,  2435-47,  2435-48, 
2435-49,  2435-50,  2435-51,  2435-52,  2435-53,  2435-54, 
2435-55,  2435-56,  2435-57,  2435-58,  2435-59,  2435-60, 
2436,  2437,  2438,  2439,  2440,  2440a,  2441,  2442,  2443,  2444, 
2445,  2445a,  24456,  2445c,  2446,  2447,  2448,  2449,  2450, 
2451,  2452,  2453,  2454,  2454-1,  2454-2,  2455,  2456,  2457, 
2458,  2459,  2460,  2461,  2462,  2463,  2463-1,  2464,  2465,  2466, 
2467,  2468,  2469,  2470-1,  2470-2,  2470-3,  2470-4,  2470-5, 
2470-6,  2470-7,  2470-8,  2476,  2476-1,  2476-2,  2476-3,  2476-4, 
2476-5,  2476-6,  2476-7,  2476-8,  2476-9,  2476-10,  2476-11, 
2476-12,  2476-13,  2476-14,  2476-15,  2476-16,  2476-17, 
2476-18,  2476-19,  2476-20,  2476-21,  2476-22,  2476-23, 
2476-24,  2476-25,  2476-26,  2476-27,  2476-28,  2476-29, 
2476-30,  2476-31,  2477(1),  2477(2),  2477-1,  2477-2,  2477-3, 
2477-4,  2477-5,  2477-6,  2477-7,  2477-8,  2477-9,  2477-10, 
2477-11,  2477-12,  2477-13,  2477-14,  2477-15,  2477-16, 
2477-17,  2477-18,  2477-19,  2477-20,  2477-21,  2477-22, 
2477-23,  2477-24,  2477-25,  2477-26,  2477-27,  2477-28, 
2477-29,  2477-30,  2477-31,  2477-32,  2477-33,  2477-34, 
2477-35,  2477-36,  2477-37,  2477-38,  2477-39,  2477-40, 
2477-41,  2477-42,  2477-43,  2477-44,  2477-45,  2477-46, 
2477-47,  2477-48,  2477-49,  2477-50,  2477-51,  2477-52, 
2477-53,  2477-54,  2477-55,  2477-56,  2477-57,  2477-58, 
2477-59,  2477-60,  2477-61,  2477-62,  2477-63,  2477-64, 
2477-65,  2477-66,  2477-67,  2477-68,  2477-69,  2477-70, 
2477-71,  2477-72,  2477-73,  2477-74,  2477-75,  2477-76, 
2477-77,  2477-78,  2477-79,  2477-80,  2477-81,  2477-82, 
2477-83,  2477-84,  2477-85,  2477-86,  2477-87,  2477-88, 
2477-89,  2477-90,  2477-91,  2477-92,  2477-93,  2477-94, 
2487,  2488,  2488a,  2489,  2489-4,  2489-5,  2489-6,  2491-1, 
2491-2,  2491a,  24915,  2491c,  2491^(1),  2491d(2),  2491c(2), 
2491d(3),  2491c,  2491/,  2492,  2493,  2493-1,  2493-2,  2493-3, 
2493-4,  2493-5,  2499-1,  2499-2,  2500a,  25006,  2500c,  2502, 
2505/,  2506,  2507,  2508,  2509,  2509a,  25096,  2509c,  2510, 
2510-1,  2510-2,  2510-3,  2510-4,  2510-5,  2510-6,  2510-7,  2510-8, 
2510-9,  2510-10,  2510-11,  2510-12,  2510-13,  2510-14,  2510-15, 
2510-16,  2510-17,  2510-18,  2510-19,  2511,  2512,  2513,  2514, 
2515,  2515-1,  2515-2,  2515-3,  2515-4,  2515-5,  2515-6,  2515-7, 
2515-8,  2515-9,  2515-10,  2515-11,  2515-12,  2515-13,  2515-14, 
2515-15,  2515-16,  2515-17,  2515-18,  2515-19,  2515-20, 
2515-21,  2515-22,  2515-22a,  2515-225,  2515-22c,  2515-2207, 
2515-22c,  2515-23,  2515-24,  2515-25,  2515-26,  2515-27, 
2515-28,  2515-29,  2515-30,  2515-31,  2515-32,  2515-33, 
2515-33a,  2515-336,  2515-33c,  2515-33d,  2515-33c,  2515-33/, 


Code  §231] 


REPEALS. 


523 


2515-33#,  2515-337i,  2515-33i,  2515-33;,  2515-34,  2515-35, 
2515-36,  2515-37,  2515-38,  2515-45a,  2515-456,  2515-45c, 
2515-45d,  2515-46,  2515-47,  2515-48,  2515-49,  2515-50, 
2915-51,  2515-52,  2515-53,  2515-54,  2515-55,  2518,  2518a, 
2519,  2520,  2550-1,  2550-2,  2550-3,  2550-4,  2550-5,  2558a, 
2559,  2559o(l),  2559a(2),  25595,  2560,  2561,  2562,  2563, 
2564,  2565,  2575-2,  2575-3,  2575-4,  2575-5,  2575-6,  2575-7, 
2575-8,  2575-9,  2575-10,  2575-11,  2575-12,  2575-13,  2575-14, 


2575-18, 
2575-24, 
2575-30, 
2575-36, 
2575-42, 
2575-48, 
2575-54, 
2575-60, 
2575-66, 
2575-72, 
2575-78, 
2575-84, 
2575-90, 
2575-96, 


2575-19 
2575-25 
2575-31 

2575-37 
2575-43 
2575-49 
2575-55 
2575-61 
2575-67 
2575-73 
2575-79 
2575-85 
2575-91 
2575-97 


2575-15,  2575-16,  2575-17, 
2575-21,  2575-22,  2575-23, 
2575-27,  2575-28,  2575-29, 
2575-33,  2575-34,  2575-35, 
2575-39,  2575-40,  2575-41, 
2575-45,  2575-46,  2575-47, 
2575-51,  2575-52,  2575-53, 
2575-57,  2575-58,  2575-59, 
2575-63,  2575-64,  2575-65, 
257t>-69,  2575-70,  2575-71, 
2575-75,  2575-76,  2575-77, 
2575-81,  2575-82,  2575-83, 
2575-87,  2575-88,  2575-89, 
2575-93,  2575-94,  2575-95, 

2575-99,  2575-100,  2575-101,  2575-102,  2575-103, 
2575-105,  2575-106,  2575-107,  2575-108,  2575-109, 
2575-111,  2575-112,  2575-113,  2575-114,  2575-115, 
2575-117,  2575-118,  2575-119,  2575-120,  2575-121, 
2575-123,  2575-124,  2575-125,  2575-126,  2575-126a, 
1266,  2575-126c,  2575-127,  2575-128,  2575-129,  2575-130, 
2575-131,  2575-132,  2575-133,  2575-134,  2575-135,  2575-136, 
2575-137,  2575-137a,  2575-138,  2575-139,  2576,  2577,  2578, 
2579,  2580,  2581,  2581-1,  2581-2,  2581-3,  2581-4,  2581-5, 
2581-6,  2581-7,  2581-8,  2581-9,  2581-10,  2581-11,  2581-12, 
2581-13,  2581-14,  2581-15,  2581-16,  2581-17,  2581-18, 
2582,  2583,  2584,  2585,  2586,  2587,  2588,  2589,  2590,  2591, 
2592,  2593,  2594,  2595,  2596,  2596-1,  2596-2,  2596-3,  2596-4, 
2596-5,  2596-6,  2596-7,  2596-8,  2596-9,  2601-1,  2601-2, 
2601-3,  2626,  2627,  2628,  2637,  2638,  2639,  2640,  2641, 
2651-1,  2651-2,  2651-3,  2651-4,  2651-5,  2651-6,  2651-7,  2651-8, 
2651-9,  2651-10,  2651-11,  2651-12,  2651-13,  2651-14,  2651-15, 
2651-16,  2651-17,  2651-18,  2665,  2666,  2667,  2668,  2668-1, 
2668-2,  2668-3,  2668-4,  2668-5,  2668-6,  2^68-7,  2668-8,  2669a, 
2670-2,  2670-3,  2672-1,  2672-2,  2672-3,  2672-4,  2672-5, 
2672-6,  2672-7,  2672-8,  2672-9,  2672-10,  2672-11,  2672-12, 
2672-13,  2672-14,  2672-15,  2672-16,  2672-17,  2672-18, 
2672-19,  2672-20,  2672-21,  2672-22,  2672-23,  2672-24, 


2575-20, 

2575-26, 

2575-32, 

2575-38, 

2575-44, 

2575-50, 

2575-56, 

2575-62, 

2575-68, 

2575-74, 

2575-80, 

2575-86, 

2575-92, 

2575-98, 

2575-104, 

2575-110, 

2575-116, 

2575-122, 

2575- 


524  the  ohio  municipal  code.  [Code  §231 

2672-25,  2672-26,  2672-27,  2672-28,  2672-29,  2672-30, 
2672-31,  2672-32,  2672-33,  2672-34,  2674-35,  2674-36, 
2672-37,  2672-38,  2672-39,  2672-40,  2672-41,  2672-42, 
2672-43,  2672-44,  2672-45,  2672-46,  2672-47,  2672-47a,  2672- 
476,  2672-48,  2672-49,  2672-50,  2672-51,  2672-52,  2672-53, 
2672-54,  2672-55,  2672-56,  2672-57,  2672-58,  2672-59, 
2672-60,  2672-61,  2672-62,  2672-63,  2672-64,  2672-65, 
2672-66,  2672-67,  2672-68,  2672-69,  2672-70,  2672-71, 
2672-72,  2672-73,  2672-74,  2672-75,  2672-76,  2672-77, 
2672-78,  2672-79,  2672-80,  2672-81,  2672-82,  2672-83, 
2672-84,  2672-85,  2672-86,  2672-87,  2672-88,  2672-89, 
2672-90,  2672-91,  2672-92,  2672-93,  2672-94,  2672-95, 
2672-96,  2672-97,  2672-98,  2672-99,  2672-100,  2672-101, 
2672-102,  2672-103,  2672-104,  2672-105,  2672-106,  2672-107, 
2672-108,  2672-109,  2672-110,  2672-111,  2672-112,  2672-113, 
2672-114,  2672-115,  2672-116,  2672-117,  2672-118,  2672-119, 
2672-120,  2672-121,  2672-122,  2672-123,  2672-124,  2672-125, 
2672-126,  2672-127,  2672-128,  2672-129,  2672-130,  2672-131, 
2672-132,  2672-133,  2672-134,  2672-135,  2672-136,  2672-137, 
2672-138,  2672-139,  2672-140,  2672-141,  2672-142,  2672-143, 
2672-144,  2672-145,  2672-146,  2672-14  7,  2672-148,  2672-149, 
2672-150,  2672-151,  2673,  2673a,  2674,  2675,  2675-5,  2675-10, 
2682,  2683,  2683-1,  2684,  2685,  2686.  2687,  2688,  2688-1, 
2688-la,  2688-2  2688-3,  2688-4,  2688-5,  2688-6,  2688-7,  2689, 
2689a(l),  2689a(2),  26896,  2689-1,  2690,  2690a,  2690d, 
2690e,  2690/,  2690#,  2690/t,  2690t,  2690;,  2690&,  2690?, 
2690m,  2690n,  2690o,  2690p,  2690^,  2691,  2691-1,  2691-2, 
2691-3,  2692,  2693,  2694,  2695,  2696,  2697,  2698,  2699, 
2699-1,  2699-2,  2699-3,  2699-4,  2699-5,  2700,  2700a,  2700-1, 
2701a,  2702,  2702a,  2702-1  2702-2,  2702-3,  2704,  2705, 
2705-1,  2705-2,  2705-3,  2705-4,  2705-5,  270S-6,  2710,  2711, 
2711-1,  2711-2,  2711-3,  2711-4,  2711-5,  2711-6,  2711-7,  2711-8, 
2711-9,  2711-10,  2711-11,  2711-12,  2711-13,  2711-14,  2711-15, 
2711-16,  2711-17,  2711-18,  2711-19,  2711-20,  2711-21,  2711- 
22,  2711-23,  2711-24,  2711-25,  2711-26,  2711-27,  2711-28, 
2712,  2713,  2714,  2715,  2716,  2717,  2718,  2719.  2720,  2721, 
2721a,  2722,  2722-1,  2723,  2723a,  2724,  2725,  2726,  2727, 
2728,  2729,  2729a,  27296,  2729d,  2729e,  2729f,  2729^(1), 
2729^(1),  2729i(l),  2729(7(2),  27297i(2),  2729^(2),  2729-1, 
2729-2,  2729-3,  2729-4,  2729-5,  2729-6,  2729-7,  2729-8,  2729-9, 
2729-10,  2729-11,  3471-4,  3471-4a,  2113,  2133,  3438, 

And  the  following  acts  are  repealed : 

An  act  entitled,  "  An  act  to  supplement  section  2729a  of  the 
Eevised  Statutes,  passed  January  29,  1885,"  passed  F*4>mary 
4,  1902  (95  O.  L.  pp.  5-6). 


Code  §231]  .  repeals.  525 

An  act  entitled,  "  An  act  to  supplement  section  1692  of 
the  Kevised  Statutes  of  Ohio  by  adding  thereto,  subsection  41," 
passed  February  20,  1902  (95  O.  L.  pp.  16-17). 

An  act  entitled,  "  An  act  to  amend  section  2267  of  the  Re- 
vised Statutes  of  Ohio,"  passed  March  4,  1902  (95  O.  L.  pp. 
35-36). 

An  act  entitled,  "  An  act  to  amend  section  2397  of  the  Re- 
vised Statutes  of  Ohio,  and  to  supplement  said  section  by 
adding  thereto  section  2379a/'  passed  March  25,  1902  (95 
O.  L.  p.  67). 

An  act  entitled,  "  An  act  to  authorize  the  council  of  any 
city  of  the  fourth  grade,  second  class,  which  at  the  last  federal 
census  had  a  population  exceeding  16,000,  to  issue  and  sell 
bonds  to  enlarge  and  extend  waterworks,"  passed  March  26, 
1902  (95  O.  L.  pp.  68-69). 

An  act  entitled,  "  An  act  to  further  supplement  section  1692 
of  the  Revised  Statutes  of  Ohio,"  passed  April  1,  1902 
(95  O.  L.  p.  78). 

An  act  entitled,  "  An  act  to  amend  section  2440  of  the  Re- 
vised Statutes  of  Ohio,"  passed  April  2,  1902  (95  O.  L.  pp. 
83-84). 

An  act  entitled,  "  An  act  to  amend  section  2232  of  the  Re- 
vised Statutes  of  Ohio,"  passed  April  14,  1902  (95  O.  L.  131). 

An  act  entitled,  "An  act  to  supplement  section  2476-27  of  the 
Revised  Statutes  of  Ohio,"  passed  April  15,  1902  (95  O.  L. 
pp.  143-144). 

An  act  entitled,  "  An  act  to  amend  section  l707d-32  of  the 
Revised  Statutes  of  Ohio  as  amended  March  11,  1898  (Vol.  93 
O.  L.,  page  44)"  passed  April  15,  1902  (95  O.  L.,  p.  148). 

An  act  entitled,  "  An  act  to  amend,  supplement  and  repeal 
certain  sections  of  subdivision  3,  of  chapter  5,  division  5,  title 
12,  of  the  Revised  Statutes  of  Ohio,"  passed  April  17,  1902 
(95  O.  L.  pp.  203,  204,  205,  206). 

An  act  entitled;  "  An  act  to  amend  section  1708a  of  the  Re- 
vised Statutes  of  Ohio,"  passed  April  17,  1902  (95  O.  1.  pp. 
206-207). 

An  act  entitled,  "  An  act  to  amend  section  1  of  an  act  en- 
titled, '  An  act  to  provide  for  the  construction  of  sewers  in 
cities  of  the  third  grade  of  the  second  class,  having  a  board  of 
public  affairs/  passed  April  15,  1889  (O.  L.  Vol.  86,  p.  360), 
as  amended  April  18,  1896  (O.  L.  Vol.  92,  p.  197),"  passed 
April  23,  1902  (95  O.  L.  p.  236). 

An  act  entitled,  "  An  act  to  amend  section  2406-95  of  the 
Revised  Statutes,"  passed  April  23,  1902  (95  O.  L.  239). 

An   act  entitled,   "  An   act  to  supplement   section  2709  of 


526  the  ohio  municipal  code.  [Code  §231 

the  Revised  Statutes  of  Ohio,  with  sectional  numbering  2709- 
1,"  passed  April  23,  1902  (95  O.  L.  pp.  242-243). 

An  act  entitled,  "  An  act  to  amend  section  1709a  of  the 
Revised  Statutes  of  Ohio,"  passed  April  23,  1902  (95  O.  L. 
pp.  247-248). 

An  act  entitled,  "  An  act  to  amend  supplemental  section 
2823a  of  the  Revised  Statutes  of  Ohio  as  passed  April  17, 
1891  (88  O.  L.  318),  relating  to  the  levy  of  taxes  by  county 
commissioners  in  counties  containing  cities  of  the  first  grade, 
second  class,  and  providing  that  such  commissioners  shall  ap- 
portion such  levy  to  separate  funds,"  passed  April  23,  1902 
(95  O.  L.  p.  255). 

An  act  entitled,  "  An  act  to  supplement  section  2701  of 
the  Revised  Statutes  of  Ohio,"  passed  April  23,  1902  (95  O. 
L.  p.  256). 

An  act  entitled,  "  An  act  to  supplement  section  2167-3  of 
the  Revised  Statutes  of  Ohio,"  passed  April  23,  1902  (95  O. 
L.  p.  259). 

An  act  entitled,  "  An  act  to  supplement  section  2505c  of  the 
Revised  Statutes  of  Ohio,"  passed  April  25,  1902  (95  O.  L., 
p.  264). 

An  act  entitled,  "  An  act  to  amend  sections  2476-17  and 
2476-18  of  the  Revised  Statutes  of  Ohio,"  passed  April  25, 
1902  (95  O.  L.,  pp.  265-266). 

An  act  entitled,  "  An  act  to  further  supplement  sections 
1545-89,  to  1545-165  inclusive  of  the  Revised  Statutes  of 
Ohio,"  passed  April  25,  1902  (95  O.  L.,  pp.  266-267-268- 
269-270). 

An  act  entitled,  "  An  act  to  authorize  cities  of  the  second 
class,  fourth  grade,  to  issue  bonds  for  cemetery  purposes," 
passed  April  23,  1902  (95  O.  L.,  244). 

An  act  entitled,  "  An  act  to  supplement  section  1692  of 
the  Revised  Statutes  of  Ohio,"  passed  April  25,  1902  (95  O. 
L.,  274). 

An  act  entitled,  "  An  act  to  provide  for  the  merging,  main- 
tenance and  government  of  public  libraries  in  cities  of  the 
second  class,  fourth  grade,"  passed  April  29,  1902  (95  O.  L., 
pp.  317-318). 

An  act  entitled,  "  An  act  to  supplement  section  2667  of  the 
Revised  Statutes  of  Ohio,"  passed  April  30,  1902  (95  O.  L., 
p.  332). 

An  act  entitled,  "  An  act  to  amend  section  1545-276  of  the 
Revised  Statutes  of  Ohio,"  passed  May  2,  1902  (95  O.  L.,  pp. 
339-340). 


Code  §231]  repeals.  527 

An  act  entitled,  "  An  act  to  amend  section  2100a  of  the 
Kevised  Statutes  of  Ohio/'  passed  May  2,  1902  (95  O.  L., 
349). 

An  act  entitled,  "  An  act  to  amend  section  1699-3  of  the 
Revised  Statutes  of  Ohio,"  passed  May  2,  1902  (95  O.  L., 
356). 

An  act  entitled,  "An  act  to  amend  section  1831  of  the  Re- 
vised Statutes  of  Ohio,"  passed  May  2,  1902  (95  O.  L.,  pp. 
353-354). 

An  act  entitled,  "  An  act  to  amend  section  1895  of  the 
Revised  Statutes  of  Ohio,"  passed  May  6,  1902  (95  O.  L.,  p. 
363). 

An  act  entitled,  "  An  act  to  amend  section  (1545-282)  (1) 
Sec.  15,  relative  to  rate  of  taxation  in  certain  cities,"  passed 
May  6,  1902  (95  O.  L.,  pp.  367-368). 

An  act  entitled,  "  An  act  to  supplement  sections  1655  and 
1708  of  the  Revised  Statutes  of  Ohio,"  passed  May  6,  1902 
(95  O.  L.,  pp.  380-381-382-383-384-385-386-387-388). 

An  act  entitled,  "  An  act  to  supplement  section  1569  of  the 
Revised  Statutes,"  passed  May  7,  1902  (95  O.  L.,  pp.  411- 
412). 

An  act  entitled,  "  An  act  to  further  supplement  section  2334 
of  the  Revised  Statutes  of  Ohio,"  passed  May  7,  1902  (95  O. 
L.,  p.  416). 

An  act  entitled,  "  An  act  to  authorize  cities  to  issue  bonds  for 
park  purposes,"  passed  May  7,  1902  (95  O.  L.,  438). 

An  act  entitled,  "  An  act  to  amend  section  1655a  of  the  Re- 
vised Statutes  of  Ohio,"  passed  May  9,  1902  (95  O.  L.,  pp. 
457-458-459). 

An  act  entitled,  "  An  act  to  further  supplement  section  1709 
of  the  Revised  Statutes  of  Ohio,"  passed  Mav  9,  1902  (95  O. 
L.,  447). 

An  act  entitled,  "  An  act  to  supplement  section  2408  of 
the  Revised  Statutes  of  Ohio  with  supplementary  section 
2408a,"  passed  May  10,  1902  (95  O.  L.,  pp.  485-486). 

An  act  entitled,  "  An  act  to  amend  section  2689a  of  the  Re- 
vised Statutes  of  the  state  of  Ohio,"  passed  May  10,  1902  (95 
O.  L.,  pp.  508-509-510). 

An  act  entitled,  "  An  act  to  amend  section  1692f  (2)  of  the 
Revised  Statutes  of  Ohio,"  passed  May  10,  1902  (95  O.  L.,  pp. 
526-527). 

An  act  entitled,  "  An  act  to  amend  section  1939  of  the 
Revised  Statutes  of  Ohio,"  passed  Mav  10,  1902  (95  O.  L.,  p. 
532)/ 

An  act  entitled,  "  An  act  to  amend  section  1788  of  the  Re- 


528  the  ohio  municipal  code.  [Code  §231 

vised  Statutes  of  Ohio/'  passed  May  10,  1902  (95  O.  L.,  p. 
535). 

An  act  entitled,  "  An  act  to  further  supplement  section  1692 
of  the  Kevised  Statutes  of  Ohio,"  passed  May  10,  1902  (95 
O.  L.,  p.  561). 

An  act  entitled,  "  An  act  to  amend  section  2408  of  the  Re- 
vised Statutes  as  amended  April  11,  1890  ( —  Ohio  L.  172)," 
passed  May  12,  1902  (95  O.  L.,  pp.  562-563)). 

An  act  entitled,  "  An  act  to  amend  section  2683  of  the  Re- 
vised Statutes  of  the  state  of  Ohio,  to  authorize  tax  levies  for 
special  purposes,"  passed  May  12,  1902  (95  O.  L.,  570). 

An  act  entitled,  "  An  act  to  amend  section  1545-276  of  the 
Revised  Statutes  of  Ohio  as  amended  May  2,  1902,"  passed 
May  12,  1902  (95  O.  L.,  pp.  589-590). 

An  act  entitled,  "  An  act  to  amend  section  1946  of  the  Re- 
vised Statutes  of  Ohio,"  passed  May  12,  1902  (95  O.  L.  pp. 
594,  595). 

An  act  entitled,  "  An  act  to  further  supplement  section  2330 
of  the  Revised  Statutes  of  Ohio,"  passed  May  12,  1902  (95  O. 
L.  604). 

An  act  entitled,  "  An  act  to  further  supplement  section  1692 
of  the  Revised  Statutes  of  Ohio,"  passed  May  12,  1902  (95  O. 
L.  561). 

An  act  entitled,  "  An  act  to  further  supplement  section  2330 
of  the  Revised  Statutes  of  Ohio,"  passed  May  12,  1902  (95  O. 
L.  604). 

An  act  entitled,  "  An  act  to  provide  for  certain  contracts 
in  regard  to  bridges  between  cities  of  the  second  grade  of  the 
second  class  and  street  railroad  purposes,"  passed  April  25, 
1902  (95  O.  L.,  p.  806). 

An  act  entitled,  "  An  act  to  provide  for  bridge  bonds  for 
cities  of  the  second  grade  of  the  second  class,  passed  March 
12,  1902  (95  O.  L.,  pages  696,  697  and  698). 

This  act  shall  supersede  all  acts  and  parts  of  acts,  not  herein 
expressly  repealed,  which  are  inconsistent  herewith.2 

(2)    Repeals  by   implication. —  General  revision  as   a   substitute 

Not  favored. —  Ludlow  v.  Johnston,  repeals  former  statutes  by  implica- 
3  O.  553;  Dodge  v.  Gridley,  10  O.  tion.  Lorain  Plank  Rd.  v.  Cotton, 
173;  Raudebaugh  v.  Shelley,  6  O.  S.  12  O.  S.  263;  Moore  v.  Vance, 
307;  Buckingham  v.  R.  R.  10  O.  S.  1  O.  1;  Shelby  Co.  v.  Frego,  26  O.  S. 
25 ;  Gallup  v.  Lorain  Co.,  20  O.  S.  488 ;  State  v.  Craig,  22  C.  C.  217. 
324;   State  ex  rel.  v.  Franklin  Co.,  Later    Contradictory    Statute    re- 

20  O.  S.  421 ;  Ruffner  v.  Hamilton  peals  earlier  by  implication.  Work 
Co.,  1  Disney,  39.  v.  Massie,   6  O.  503;  Pierce  v.  Bd. 


Code  §231] 


REPEALS. 


529 


of  Ed.,  1  N.  P.  286,  289;  Met.  Tr. 
Co.  v.  Ry.  Co.,  12  0.  F.  D.  584. 

Special  act  by  general  law  not 
repealed  by  implication  unless  nec- 
essary to  give  meaning  to  later 
enactment.  Fosdick  v.  Perrysburg, 
14  O.  S.  472;  Shunk  v.  First  Natl. 
Bank,  22  O.  S.  508,  515;  State  v. 
Kelley,  25  O.  S.  29,  33;  State  v. 
Newton,  26  O.  S.  200;  Commission- 
ers v.  Bd.  P.  W.  39  O.  S.  628;  State 
ex  rel.  v.  Davis,  23  O.  S.  434;  Knox 
Co.   v.  McComb,   19   O.   S.  320;  Ex 


parte  Van  Hagan,  25  O.  S.  426; 
White  v.   State,  11  Dec.  794. 

General  law  by,  special  act  re- 
pealed by  implication  where  the  two 
are  irreconcilable.  Pease  v.  Ryan, 
7  C.  C.  44;  Wright  v.  Munger,  5  O. 
441 ;  Thomas  v.  Evans,  73  O.  S.  140. 

See  notes  under  §  212  of  the  Code, 
page  478. 

"Inconsistent  herewith"— meaning 
of,  see  State  ex  rel.  v.  Craig,  22  C. 
C.  441. 


RELATED   STATUTES 


i 

OFFICERS. 


1.     GENEKAL  PKOVISIONS. 

Sec.  1R.  S.  [Oath  includes  affirmation.]  The  word  oath  in- 
cludes affirmation ;  and,  whenever  an  oath  is  required  or  autho- 
rized hy  law,  an  affirmation,  in  lieu  therof,  may  be  taken  by 
any  person  having  conscientious  scruples  to  taking  an  oath ; 
and  an  affirmation  has  the  same  force  and  effect  as  an  oath.1 
[51  v.  57,  §  596;  (S.  &  C.  1130).] 

( 1 )   Who  may  administer  oaths.  When  oath  binding. —  See  Brock 

—See  Harmon  v.  Stockwell,  9  O.  93;       v.  Milligan,  10  0.  121. 
Warwick  v.  State,  25  O.  S.  21. 

Sec.  2 U.S.  [All  officers  must  take  an  oath  of  office.]  Each 
person  chosen  or  appointed  to  an  office  under  the  constitution 
or  laws  of  the  state,  and  each  deputy  or  clerk  of  such  officer, 
shall,  before  entering  upon  the  discharge  of  his  duties,  take  an 
oath  of  office,1  but  the  failure  to  take  such  oath  does  not  affect 
his  liability  or  the  liability  of  his  sureties.2 

(1)  See  §  1737  R.  S.,  under  §  224  (2)   See  §  1740  R.  S.  under  §  224 

of  the  Code,  and  notes,  p.  502.  of  the  Code,  and  notes,  p.  507. 

Sec.  3R.  S.  [Oath  of  office  of  judges;  oath  of  office  of  other 
officers.]  The  oath  of  office  of  each  judge  of  a  court  of  record 
shall  be,  to  support  the  constitution  of  the  United  States  and 
the  constitution  of  this  state,  and  to  administer  justice  without 
respect  to  persons,  and  faithfully  and  impartially  to  discharge 
and  perform  all  the  duties  incumbent  on  him  as  such  judge, 

531 


632  THE    OHIO    MUNICIPAL     CODE. 

according'  to  the  best  of  his  ability  and  understanding ;  and  the 
oath  of  office  of  every  other  officer,  deputy,  or  clerk,  shall  be, 
to  support  the  constitution  of  the  United  States  and  the  constitu- 
tion of  this  state,  and  faithfully  to  discharge  the  duties  of 
his  office.1      [50  v.  67,  §  19;  (S.  &  C.  381).] 

(1)  Form  of  oath.— See  notes 
to  §  1737  R.  S.,  re-enacted  in  §  224 
of  the  Code,  p.  502. 

Sec.  4R.  S.  [Seal;  of  what  it  may  consist.]  Wherever  an  of- 
cial  or  a  corporate  seal x  is  required  to  be  affixed  to  any  instru- 
ment of  writing,  an  impression  of  such  seal  upon  either  wax, 
wafer  or  other  adhesive  substance,  or  upon  the  paper  or  ma- 
terial on  which  such  instrument  is  written,  shall  be  alike  valid 
and  sufficient;  private  seals  are  abolished,  and  the  affixing  of 
what  has  been  known  as  a  private  seal  to  any  instrument 
whatsoever,  shall  not  give  such  instrument  any  additional  force 
or  effect,  or  in  any  wav  change  the  construction  thereof.  [1884, 
April  14 :  81  v.  198  ;  80  v.  79  ;  Rev.  Stat.  1880 ;  29  v.  349,  §  1 ; 
(S.  &  C.  1385).] 

( 1 )  Corporate  seal  of  municipal- 
ity. See  note  (3)  to  §  7  of  the  Code, 
page  43. 

Sec.  5  R.  S.  [Depositaries  of  official  bonds  must  record  them ;  a 
certified  copy  of  the  record  made  evidence.]  Every  officer,1  on  re- 
ceiving an  official  bond  which  by  law  is  required  to  be  filed  or 
deposited  with  him,  shall  immediately,  on  receiving  such  bond, 
record  the  same  in  a  book  to  be  kept  by  him  for  that  purpose ; 
and  a  certified  transcript  of  the  record  of  any  such  bond  shall 
be  taken  and  held,  in  all  courts  and  places,  as  conclusive  evi- 
dence of  such  record,  and  prima  facie  evidence  of  the  execution 
and  existence  of  such  bond.      [41  v.  13,  §  1 ;  (S.  &  C.  192).] 

(1)  Bonds  of  municipal  offi=  Filing  bonds  of  municipal  offi- 
cers.—  See  §  1738  R.  S.  (re-enacted  cers. —  See  §  1738  R.  S.  (re-enacted 
in  §  224  of  the  Code)  and  notes  in  §  224  of  the  Code)  and  notes 
thereunder,  p.  504.  thereunder,  p.  504. 

Sec.  6  R.  S.     [What  bonds  good  when  signed  in  blank.]     All 

official  bonds,  and  all  bonds  of  executors,  administrators,  guard- 
ians and  trustees,  and  all  bonds  required  or  authorized  to  be 
taken  by  or  before  any  court,  judge,  public  board  or  officer, 
judicial  or  ministerial,  and  all  bonds  of  indemnity,  and  all 
other  bonds  conditioned  to  become  void  upon  the  performance 


OFFICERS.  533 

by  the  parties  thereto,  or  any  of  them,  of  the  stipulations  therein 
contained,  shall  bind  and  render  liable  thereon  all  the  obligors 
therein,  both  principals  and  sureties,  whether  at  the  time  of 
the  signing  of  the  same  by  such  obligors,  or  any  of  them,  the 
amounts  of  such  bonds  to  be  filled  in  or  left  in  blank,  if  such 
amounts  be  filled  in  before,  or  at  the  time  of  the  approval  or 
acceptance  of  such  bond ;  and  such  filling  in  may  be  done  in  the 
absence  of  any  or  all  of  the  obligors,  and  without  any  express 
authority  for  that  purpose  from  them  or  any  of  them.1  [1883, 
March  29  :  80  v.  79  ;  Eev.  Stat.  1880  ;  66  v.  15  ;  §§  1,  2.] 

(1)   Effect    of    blanks.— See     §  McLain  v.  Simington,  37  O.  S.  484; 

1738  K.  S.    (re-enacted  in  §  224  of  Partridge   v.    Jones,    38   O.    S.    375. 

Code)   and  notes  thereunder,  p.  504.  See  also  early  cases  of  State  v.  Bor- 

What  blanks   may  be  filled. —  ing,   15  O.  507;    Famulener  v.  An- 

Stevens   v.   Allmen,    19   O.    S.    485;  derson,   15  O.  S.  473. 

Sec.  7  R.  S.  [What  is  sufficient  as  the  condition  of  an  official 
or  public  bond.]  A  bond  payable  to  the  state  of  Ohio,  or  other 
payee  as  may  be  directed  by  law,  reciting  the  election  or  ap- 
pointment of  a  person  to  an  office  or  public  trust  under  or  in 
pursuance  of  the  constitution  or  laws,  and  conditioned  for  the 
faithful  performance,  by  such  person,  of  the  duties  of  the  office 
or  trust,  shall  be  sufficient,  notwithstanding  any  special  pro- 
vision made  by  law  for  the  condition  of  such  bond.1 

(1)  Condition  in  municipal  (re-enacted  in  §  224  of  the  Code) 
officer's  bond. —  See  §    1738   R.  S.      and  notes  thereunder,  p.  504. 

Sec.  8  R.  S.  [Officers  to  hold  till  their  successors  are  qualified, 
unless  otherwise  provided.]  Any  person  holding  an  office  or 
public  trust  shall  continue  therein  until  his  successor  is  elected 
or  appointed  and  qualified,  unless  it  is  otherwise  provided  in 
the  constitution  or  laws.1 

(1)    Holding      until      successor  ?&  rel.  v.  Kearns,  47  O.  S.  566,  568. 

qualifies. —  See  §   116  of  the  Code  See  further  as  to  what  is  an  office, 

(relating   to    term    of   members    of  State  v.  Kennon,  7  O.  S.  546;  State 

council)    and  note  3  thereunder,  p.  v.  Taylor,  12  O.   S.  130;   Walker  v. 

304.  Cincinnati,  21  O.  S.  14;  Warwick  v. 

Compare  also  Code   §§    129,    132,  State,  25  O.  S.  21;  State  v.  Wilson, 

133  and  others,  relating  to  terms  of  29  O.  S.  347. 

other  municipal  officers.  An  officer  whose  term  is  fixed  and 

What    officers. —  Membership    in  limited    by    the    constitution    holds 

council  was  held  to  be  an  office  with-  only  until  the  end  of  such  term  and 

in  the  meaning  of  §  8  R.  S.,  State  cannot  hold  over  until  his  successor 


534 


THE    OHIO     MUNICIPAL    CODE. 


qualifies,  as  provided  in  §  8  R.  S., 
State  ex  rel.  v.  Brewster,  44  O.  S. 
589. 

An  officer  appointed  to  fill  an  un- 
expired term,  holds  until  his  suc- 
cessor is  chosen  and  qualifies.  State 
v.  McGregor,  44  O.  S.  628;  State 
ex  rel.  v.  Darby,  12  C.  C.  235,  239 
(aff'd  52  0.  S,  611). 

See  also  State  ex  rel.  v.  Thrall, 
59  0.  S.  368. 

Meaning  of  successor. —  Suc- 
cessor  as  used  in  §   8  was  held  to 


mean  a  regular  successor  and  not 
a  mere  temporary  appointee.  State 
v.  Wright,  56  0.  S.  540,  554. 

The  holding  over  continues  where 
the  time  of  qualifying  and  taking 
office  by  the  successor  has  been  ex- 
tended by  statute.  State  ex  rel.  v. 
Killits,  8  C.  C.  30. 

Character  of  holding  over.— 
The  holding  over  is  a  continuance 
of  the  original  term  of  office.  State 
v.  Howe,   25   O.  S.  588. 


Sec.  9R.  S.  [Deputies  and  clerks;  their  terms,  etc.]  A  dep- 
uty or  clerk,  appointed  in  pursuance  of  law,  shall  hold  the  ap- 
pointment only  during  the  pleasure  of  the  officer  appointing 
him ;  x  and  the  principal  may  take  from  his  deputy  or  clerk  a 
bond,  with  sureties,  conditioned  for  the  faithful  performance 
of  the  duties  of  the  appointment ;  but,  in  all  cases  the  principal 
is  answerable  for  the  neglect  or  misconduct  in  office  of  his 
deputy  or  clerk. 


(1)  No  holding  over.— A  depu- 
ty, since  he  must  hold  during  the 
pleasure  of  the  officer  appointing 
him,  cannot  claim  the  office  under 
a  successor  to  the  principal,  though 
the  deputy  was  appointed  for  a  defi- 
nite  term   which  had   not   expired. 


Brady  v.  French,  6  N.  P.  122. 
Whether  a  deputy  clerk  legally 
appointed  during  first  term  and 
holding  over  during  second  term, 
without  reappointment,  is  a  de  facto 
officer,  quere.  State  v.  Townley,  67 
O.  S.  21.  27. 


Sec.  10  R.  S.  [Power  of  deputy.]  A  deputy,  when  duly  qual- 
ified, shall  have  power  to  perform  all  and  singular  the  duties 
of  his  principal.1 


(1)   Character      of      deputy. — 

Compare  §  4949  R.  S. 

Deputy  is  not  a  public  officer  with- 
in penal  laws.  State  v.  Meyers,  56 
O.  S.  340,  349. 

See  further  note  (2)  to  §  1737 
R.  S.,  re-enacted  in  §  224  of  the 
•Code,  p.  502. 

Duties. —  As  to  duties  that  may 


be  performed  by  various  deputies, 
such  as  deputy  clerks  of  court,  sher- 
iffs, etc.,  see  Chapin  v.  Allison,  15 
O.  566;  Walke  v.  Bank,  15  O.  288; 
Haines  v.  Lindsey,  4  O.  88;  Ander- 
son v.  Brown,  9  O.  151;  Hulse  v. 
State,  35  O.  S.  421;  Warwick  v. 
State,  25  O.  S.  21. 


Sec.  11  R.  S.  [Term  of  appointee  to  elective  office.]  When  an 
elective  office  becomes  vacant,  and  is  filled  by  appointment, 
such  appointee  shall  hold  the  office  till  his  successor  is  elected 
and  qualified,  and  such  successor  shall  be  elected  at  the  first 
proper  election  that  is  held  more  than  thirty  days  after  the 


OFFICERS. 


535 


occurrence  of  the  vacancy ;  1  but  this  section  shall  not  be  con- 
strued to  postpone  the  time  for  such  election  beyond  that  at 
which  it  would  have  been  held  had  no  such  vacancy  occurred, 
nor  to  affect  the  official  term,  or  the  time  for  the  commencement 
of  the  same,  of  any  one  elected  to  such  office  before  the  occur- 
rence of  such  vacancy. 


(1)  Municipal  offices. —  As  to 
manner  of  filling  vacancies  and 
terms  of  appointees,  in  municipal 
offices,  see  §  228  of  the  Code. 

Effect  of  special  provisions. — 
When  there  is  a  special  statute  pro- 
viding for  the  manner  of  appoint- 
ment to  fill  vacancies  in  particular 
offices  and  the  terms  of  such  appoint- 
ees, such  special  statute  must  be  re- 
garded as  an  exception  to  the  gen- 
eral provisions  of  §  11  It.  S.  State 
ex  rel.  v.  McGregor,  44  O.  S.  628; 
see  also  Cincinnati  v.  Holmes,  56 
O.  S.  104,  114. 

Vacancy. —  As  to  when  a  vacancy 
occurs  see  note  (2)  to  §  228  of  the 
Code. 

First  proper  election.  —  The 
words  "  first  proper  election  "  were 
held  to  mean  the  first  recurrence  of 
the  regular  election  for  that  par- 
ticular  office,   under   the   law   regu- 


lating elections  to  that  office.  State 
v.  Barbee,  45  O.  S.  347 ;  State  ex  rel. 
v  Hadley,  59  O.  S.  167,  169;  State 
v.  Slough,  12  C.  C.  105;  Harte  v. 
Bode,  4  N.  P.  421;  State  ex  rel.  v. 
Nash,  66  0.  S.  612,  620. 

Appointment  to  fill  vacancy. — 
Officer  cannot  generally  make  ap- 
pointment to  begin  after  expiration 
of  term  of  officer  appointing;  but 
where  statute  requires  appointment 
at  a  particular  time,  it  may  be  made 
at  that  time  without  regard  to  the 
time  when  service  begins.  State  ex 
rel.  v.  Ermston,  14  C.  C.  614. 

Appointment  for  less  or  more 
than  the  legal  time  will  not  abridge 
or  extend  the  term  of  the  appointee 
as  fixed  by  the  statute.  State  ex  rel. 
v.  Darby,  12  C.  C.  235  (aff'd  52  O. 
S.  611)  ;  State  ex  rel.  v.  Slough,  12 
C.  C.  105. 


Sec.  16  R.  S.  [Official  seals.]  *  *  *  The  seals  of  all  oth- 
er state,  county,  and  municipal  officers  1  shall  be  one  inch  and 
three-fourths  in  diameter,  and  shall  be  surrounded  by  the  proper 
name  of  the  office.     *     *     *      [1886,  April  1 :  83  v.  60.] 


(1)  Corporate  seal  of  munici- 
pality. See  note  (3)  to  §  7  of  the 
Code,  page  43. 


Seal    of    city    auditor.— See    § 

134  of  the  Code. 
Seal    of    village    clerk.— See    § 

201   of  the  Code. 


Sec.  17  R.  S.  [Debts  not  to  be  contracted  by  public  officers 
without  authority.]  An  officer  or  agent  of  the  state  or  of  any 
county,  township,  or  municipal  corporation,1  who  is  charged 
or  intrusted  with  the  construction,  improvement,  or  keeping  in 
repair  of  any  building  or  work  of  any  kind,  or  with  the  manage- 
ment or  providing  for  any  public  institution,  shall  not  make 
any  contract  binding  or  .purporting  to  bind  the  state,  or  such 


536  THE    OHIO    MUNICIPAL    CODE. 

county,  township,  or  municipal  corporation,  to  pay  any  sum 
of  money  not  previously  appropriated  for  the  purpose  for  which 
such  contract  is  made,  and  remaining  unexpended  and  applic- 
able to  such  purpose,  unless  such  officer  or  agent  has  been  au- 
thorized to  make  such  contract ;  and  if  any  such  officer  or  agent 
make  or  participate  in  making  a  contract  without  such  appro- 
priation or  authority,  he  shall  be  personally  liable  thereon,  and 
the  state,  county,  township,  or  municipal  corporation  in  whose 
name  or  behalf  the  same  was  made,  shall  not  be  liable  thereon. 
[54  v.  77,  §§  1,  2;  (S.  &  C.  889).] 

(1)  Restrictions  as  to  munici-  Code  and  notes  thereunder,  pp.  172 
pal  contracts. —  See    §    45   of   the      to  177  inclusive. 

Sec.  19  R.  S.  [An  office  is  vacant  if  the  person  elected  or  ap- 
pointed thereto  does  not  qualify.]  Any  person  elected  or  ap- 
pointed to  an  office  of  whom  bond  or  security  is  by  law  required 
previous  to  the  performance  of  the  duties  imposed  on  him  by 
his  office,  who  refuses  or  neglects  to  give  such  bond  or  find  such 
security,  agreeably  to,  and  within  the  time  for  that  purpose 
prescribed  by  law,  and  in  all  respects  to  qualify  himself  for 
the  performance  of  such  duties,  shall  be  deemed  to  have  refused 
to  accept  the  office  to  which  he  was  elected  or  appointed,  and 
the  same  shall  be  considered  vacant,  and  be  filled  as  provided 
by  law.1      [29  v.  407,  §  4;  (S.  &  C.  888).] 

(1)   Failure    to    qualify. —  Com-  — Under  §  19  R.  S.  and  a  section 

pare  §   1740  R.  S.    (re-enacted  in  §  requiring  proper  authorities  to  "  de- 

224  of  the  Code)  and  see  notes  there-  clare   office   vacant"    on    failure    to 

under,  p.  507.  give  bond,   if  one   elected   to  office 

Acceptance      delayed.  —  Where  fails,  without  justification,  to  give 

bond  is  given  within  time  required  bond,  a  vacancy  is  created  beginning 

by  law  but  is  not  accepted  till  after  on   the   day   the  bond    should    have 

the  term  begins,  the  acceptance  will  been  given.     State  ex  rel.  v.  Commis- 

relate   back    and   the   bond   will    be  sioners,  61  0.  S.  506. 

sufficient.     State  v.    Tool,   4    O.    S.  §  19  cited,  Reiter  v.  State,  51  O. 

553.  S.  74. 

Effect  of  failure  to  give  bond. 

Sec.  20  R.  S.  [Gifts,  devises,  and  bequests  may  be  made  to  pub- 
lic authorities.]  The  state,  county  commissioners,  township 
trustees,  cemetery  trustees,  the  councils,  boards  or  officers  of  mu- 
nicipal corporations,  and  the  boards  of  directors,  trustees  or  oth- 
er officers  of  any  of  the  benevolent,  educational,  penal  or  reform- 
atory institutions,  wholly  or  in  part  under  the  control  of  the 
state,   or  any  of  said  municipalities  or  institutions  shall   be 


OFFICERS. 


537 


capable  of  receiving  by  gift,  devise  or  bequest,  moneys,  lands  or 
other  properties,  for  their  benefit  or  the  benefit  of  any  of  those 
under  their  charge,  and  to  hold  and  apply  the  same  according 
to  the  terms  and  conditions  of  the  gift,  devise  or  bequest;  1 
but  this  section  shall  not  be  held  to  affect  or  change  the  statutory 
provisions  as  to  devises  or  bequests  for  such  purposes.  [1881, 
April  8 :  78  v.  109 ;  Kev.  Stat  1880 ;  66  v.  8,  §  1 ;  74  v.  38,  § 
20;  75  v.  42,  §  1.] 


(1)   Power    to   receive. —  See   § 

7  of  the  Code,  page  43;  and  para- 
graph 26  of  §7,  page  61. 

Character  of  devises.  —  For 
cases  sustaining  devises  to  public 
authorities,  see  Scott  v.  Trustees,  39 
O.  S.  153;  Christy  v.  Commission- 
ers, 41  O.  S.  711;  Chapin  v.  School 
District.  3Dec.  (Re)  321.  Seefurther 
Urmey  v.  Wooden,  1  O.  S.  160. 

Investment  of  funds  received, 
see  Scott  v.  Trustees,  supra. 


Void  devises.—  §  20  R.  S.  must 
be  construed  in  connection  with  § 
5915  R.  S.,  (making  bequests  for 
charitable  purposes  void,  if  made 
within  one  year  of  death,  etc. ) ,  and 
bequests  in  violation  of  §  5915  will 
be  absolutely  void,  and  the  public 
authorities  will  not  have  power  to 
receive  the  same.  Folsom  v.  Haas, 
9  C.  C.  473. 


Sec.  21  R.  S.  [Concerning  illegal  loans  or  deposits  by  public 
officers.]  The  state,  any  county,  township,  municipal  corpora- 
tion, or  school  board,  shall  not  be  precluded  by  the  illegal  loan 
or  deposit  by  any  officer  or  agent  of  public  money,  funds,  prop- 
erty, bonds,  securities,  or  assets,  belonging  to  it,  from  suing 
for  and  recovering  the  same;  1  and  such  suit  shall  not  be  held 
to  be  an  adoption  or  satisfaction  of  such  illegal  transaction.2 
[60  v.  64,  §  1  (S.  &  S.  920).] 


(1)   Application     of     section. — 

Where  a  municipality  has  purchased 
property  for  the  purpose  of  donat- 
ing the  same  to  a  manufacturing 
corporation,  which  purpose  is  with- 
out authority  of  law,  and  has  con- 
veyed the  same,  it  cannot  claim  to 
recover  back  the  property  and  hold 
it  under  the  provisions  of  §  21  R.  S. 


for  the  original  purchase  was  in- 
valid. Markley  v.  Village  of  Min- 
eral City,  58  O.  S.  430. 

Former  rule. —  In  State  v.  But 
ties,  3  O.  S.  309,  it  was  held  the 
state  could  not  sue  to  recover  an 
unauthorized  loan  without  ratifying 
the  loan. 


Sec.  1049  R.  S.  [Duty  of  public  officers  with  respect  to  county 
auditor's  report  as  to  number  of  horses,  cattle,  etc.,  and  local 
indebtedness.]  The  auditor  shall,  on  or  before  the  first  day 
of  July,  annually,  make  out  and  transmit  to  the  auditor  of 
state,  an  abstract  of  the  number  of  horses,  neat  cattle,  she^n, 
hogs,  mules,  and  asses  in  his  county,  as  the  same  are  returned 


538  THE    OHIO    MUNICIPAL    CODE. 

to  his  office  by  the  assessors;  and  he  shall  also,  on  or  before 
the  first  day  of  October,  annually,  transmit  to  the  state  audi- 
tor, a  complete  abstract  of  the  funded  and  unfunded  indebted- 
ness of  his  county,  and  of  each  township,  city,  village,  hamlet, 
and  of  every  school  district  therein,  as  the  same  may  be  on  the 
first  day  of  September  preceding,  with  the  rate  of  interest  pay- 
able thereon,  the  date  of  maturity,  and  the  purpose  for  which 
the  same  has  been  created ;  and,  also,  what  provision  of  money 
has  been  made  for  the  payment  of  any  such  indebtedness,  what 
amount  has  been  collected,  and  whether  remaining  in  the  coun- 
ty, township,  city,  village,  hamlet,  or  school  district  treasury; 
and  to  enable  the  county  auditor  to  make  this  statement,  the 
various  officers  of  all  townships,  cities,  villages,  hamlets,  and 
school  districts  are  required  to  furnish  him  with  information 
in  that  behalf,  at  such  time  and  in  such  manner  as  he  requires ; 
and  he  shall  furnish  them  blanks  for  that  purpose*  [66  v.  26, 
§2;  70  v.  251,  §§1,2,  3.] 

Sec.  6969  R.  S.  [Officer  or  agent  of  state  who  is  interested  in 
contracts  for  use  of  state.]  It  shall  be  unlawful  for  any  person 
holding  any  office  of  trust  or  profit  in  this  state,  either  by  elec- 
tion or  appointment,  or  any  agent,  servant  or  employe  of  such 
officer,  or  of  a  board  of  such  officers  to  become  directly  or  indi- 
rectly interested  in  any  contract  for  the  purchase  of  any  prop- 
erty, supplies  or  fire  insurance  for  the  use  of  the  county, 
township,  city,  village,  hamlet,  board  of  education  or  public  in- 
stitution with  which  he  is  connected.  And  it  shall  be  unlaw- 
ful for  any  such  person,  agent,  clerk,  servant  or  employe  to 
become  interested  in  any  contract  for  the  purchase  of  property, 
supplies  or  fire  insurance  for  the  use  of  any  county,  township, 
city,  village,  hamlet,  board  of  education  or  public  institution 
with  which  he  is  [not]  connected  when  the  amount  of  such 
contract  exceeds  the  sum  of  fifty  dollars,  unless  the  contract  is 
let  on  competitive  bids,  duly  advertised  as  provided  by  law. 
Any  person  violating  the  provisions  of  this  act  shall  be  im- 
prisoned in  the  penitentiary  not  more  than  ten  years  nor  less 
than  one  year.1  [94  v.  391 ;  K.  S.  of  1880 ;  73  v.  86,  §  21 ;  73 
v.  31,  §  22 ;  73  v.  43,  §  34.] 

(1)  Officer  interested  in  con= 
tract. —  See  §  45  and  see  note  (3) 
thereunder,  p.  176. 

Sec.  6976  R.  S.  [Municipal  officer  or  township  trustee  finan- 
cially interested  in  public  work.]  An  officer  or-  member  of  the 
council  of  any  municipal  corporation  or  the  trustee  of  any  town- 


OFFICERS.  539 

ship  who  is  interested  directly  or  indirectly  in  the  profits  of  any 
contract,  job,  work  or  services  for  the  corporation  or  town- 
ship, or  acts  as  commissioner,  architect,  superintendent  or  en- 
gineer in  any  work  undertaken  or  prosecuted  by  the  corporation 
or  township  during  the  term  for  which  he  was  elected  or  ap- 
pointed, or  for  one  year  thereafter,  shall  be  fined  not  more  than 
one  thousand  dollars  nor  less  than  fifty  dollars,  or  imprisoned 
not  more  than  six  months  nor  less  than  thirty  days,  or  both, 
and  shall  forfeit  his  office.1  [94  v.  406;  90  v.  29;  66  v.  164, 
§  92.] 

(1)    See  note  under  §  6969  R.  S.    page  538. 

Sec.  3641c.  [Sufficiency  of  bonds,  etc.,  executed  or  guaranteed 
by  companies.]  In  all  cases  in  which  any  bond,  recognizance  or 
undertaking  is  now  or  hereafter  may  be  required  or  permitted 
by  law,  or  ordinance,  or  the  head  of  any  department  of  this 
state,  or  any  division  of  government  of  [or]  municipality 
thereof,  with  one  or  more  sureties,  the  execution  of  the  same 
or  the  guaranteeing  thereof,  as  the  case  may  be,  as  surety,  shall 
be  sufficient  by  a  company  or  companies  authorized  by  the  laws 
of  this  state  to  guarantee  the  fidelity  of  persons  holding  places 
of  public  or  private  trust,  to  guarantee  the  performance  of 
contracts  other  than  insurance  policies,  and  to  execute  and 
guarantee  bonds  and  Undertakings  in  actions  or  proceedings 
or  by  law  allowed ; 

[All  official  or  fiduciaries'  bonds  must  be  guaranteed  by  surety 
company;  exception,]  and  the  execution  or  guaranteeing,  as 
surety,  of  all  bonds  and  undertakings  for  the  faithful  perform- 
ance of  official  or  fiduciary  duties,  or  the  faithful  keeping, 
applying  or  accounting  for  funds  or  property,  or  for  one  or 
more  of  such  purposes,  excepting  bonds  of  the  superintendent 
of  insurance  and  of  notaries  public,  or  of  executors,  adminis- 
trators, guardians,  trustees  or  other  fiduciaries,  whose  bonds 
are  fixed  by  the  court  at  an  amount  not  in  excess  of  two  thou- 
sand dollars  is  hereby  required  to  be  by  such  company  or  com- 
panies. But  no  such  company  shall  qualify  as  surety  upon  any 
one  bond  or  undertaking,  herein  required  to  be  a  corporate 
surety  bond  or  undertaking,  for  more  than  twenty  per  cent,  of 
its  paid  up  capital.  And  any  such  bond,  recognizance  or 
undertaking  when  so  executed  and  guaranteed,  shall  be  in  all 
respects,  a  full  and  complete  compliance  with  every  requirement 
of  law,  ordinance,  rule  or  regulation  that  such  bond,  under- 
takfog  *r  recognizance  shall  be  executed  and  guaranteed  by  one 


539a  THE    OHIO    MUNICIPAL    CODE. 

surety  or  two  or  more  sureties,  or  that  such  sureties  shall  be 
residents  or  householders  or  freeholders ; 

[Allowance  for  premium  paid  company.]  and  any  judge,  court 
or  officer,  whose  duty  it  is  to  pass  upon  the  account  of  any 
assignee,  trustee,  receiver,  guardian,  executor,  administrator 
or  other  fiduciary,  required  by  law  to  give  bond  or  undertaking 
as  such,  and  whenever  any  such  assignee,  receiver,  trustee, 
guardian,  executor,  administrator  or  other  fiduciary,  has  given 
bond  or  undertaking  with  a  surety  company  or  companies  as 
surety  or  sureties  thereon,  as  herein  provided,  shall  allow,  in 
the  settlement  of  the  account  of  such  assignee,  receiver,  trustee, 
guardian,  executor,  administrator  or  other  fiduciary  a  reason- 
able premium,  subject  to  the  limitations  hereinafter  provided, 
paid  to  any  such  company  or  companies  for  becoming  his  surety 
on  such  bond  or  undertaking; 

[How  premium  paid.  Amount  of  premium.]  in  all  other  cases, 
where  by  the  foregoing  provisions  of  this  act  a  corporate  surety 
or  guarantor  is  required,  the  premium  to  be  paid  to  any  such 
company  or  companies  for  becoming  such  surety  or  guarantor 
shall  be  paid  out  of  the  general  funds  of  the  divisions  of  gov- 
ernment by  or  for  which  the  person  giving  such  bond  or  under- 
taking was  appointed  or  elected;  provided,  however,  that  the 
premium  shall  in  no  case  exceed  in  the  aggregate  one-half  of 
one  per  cent,  per  annum  on  the  amount  of  such  bond  or  under- 
taking, unless  such  bond  or  undertaking  shall  be  in  double  the 
amount  of  the  liability  of  the  party  principal  therein,  when 
such  premium  shall  not  exceed  in  the  aggregate  one-fourth  of 
one  per  cent,  per  annum  on  the  amount  of  such  bond  or  under- 
taking, provided,  also  that  such  company  or  companies  have 
complied  and  continue  to  comply  with  the  laws  of  this  state 
relative  to  such  companies,  and  with  such  requirements  as  to 
justification,  as  may  be  prescribed  by  the  head  of  the  depart' 
ment,  court,  judge,  or  officer  required  to  approve  or  accept  thf 
same. 

[When  personal  security  bond  may  be  given.]  Provided,  fur- 
ther, that  if  any  person  required  to  give  any  such  bond  or  under- 
taking shall  make  affidavit  that  he  has  applied  to  any  such 
company  or  companies,  as  the  case  may  be,  for  such  bond  or 
undertaking,  and  that  the  same  has  been  refused  by  such  com- 
pany or  companies,  or  rejected,  in  accordance  with  the  pro- 
visions hereof  by  the  head  of  the  department,  court,  judge,  of 
officer  required  to  approve  or  accept  the  same ;  upon  filing  such 
affidavit  with  such  head  of  department,  court,  judge,  or  officer, 


OFFICERS.  539& 

such  person  may  give  such  bond  or  undertaking  with  such 
personal  surety  or  sureties  and  such  justification  of  sureties 
as  would  be  required  by  law  except  for  the  passage  of  this  act ; 
[Surety  company  shall  not  require  or  receive  collateral  security.] 
provided,  further,  that  no  surety  company  or  companies  execut- 
ing bonds  for  public  officials  shall  require  or  receive  collateral 
or  other  security  from  the  public  officials  for  whom  such  bond 
or  bonds  are  executed.  [97  v.  182;  92  v.  320;  90  v.  157; 
88  v.  14.] 

Validity. — The  above  section,  as  quires  surety  companies  as  sureties 

amended   in   1904,   and   known  as  on  certain  bonds.     State  ex  rel.  v. 

the  Crafts  Bond  law,  was  held  un-  Robins,  71  O.  S.  273;  Haunts  v.  Lan- 

constitutional,  in  so  far  as  it  re-  man  Co.,  15  Dec.  64. 

2.  PROVISIONS  AS  TO  CERTAIN  OFFICERS. 

Council.1 

Sec.  1689  R.  S.  [Voting  precincts.]  Whenever  the  electors  in 
any  ward  of  any  city  exceed  seven  hundred  and  fifty,  the  council 
shall  divide  the  ward  into  as  many  voting  precincts  as  it  may 
deem  proper,  and  the  combined  vote  of  such  precincts  shall  be 
returned  as  the  vote  of  the  ward,  and  whenever  the  electors  in 
any  village  exceed  seven  hundred  and  fifty,  the  council  may 
divide  the  village  into  as  many  voting  precincts  as  it  may  deem 
proper,  and  the  combined  vote  of  such  precincts  shall  be  re- 
turned as  the  vote  of  the  village ;  but  this  section  shall  not 
apply  when  provision  is  otherwise  made  by  law.  [1889,  April 
2 :  86  v.  176,  1Y7 ;  82  v.  15 ;  Rev.  Stat.  1880 ;  71  v.  135,  §  10.] 

( 1 )   Title,  division  and  chapter.  §  1678  R.  S.,  the  only  other  sec- 

— §§    1689    and    1691    R.    S.    given      tion  not   repealed   in  that   chapter, 
here  formed  'part  of  Chap.  2,  Div.      is  re-enacted  in  §  197  of  the  Code. 
3,  Title  XII  R.  S.,  relating  to  coun- 
cil and  board  of  aldermen. 

Sec.  1691  R.  S.  [Council  restricted  as  to  contracts.]  The  coun- 
cil shall  not  enter  into  any  contract  which  is  not  to  go  into  full 
operation  during  the  term  for  which  all  the  members  of  such 
council  are  elected.1      [66  v.  261,  §  660.] 

( 1 )    Scope  of  restriction. —  See  tion."    Logan  Nat.  Gas  Co.  v.  Chilli- 

Kerlin  Bros.  v.  Toledo,  20  C.  C.  603,  cothe,  65  O.  S.  186,  207. 
621.  The  restriction  does  not  apply  to 

It  was  held  that  the  contracts  re-  contracts    with    gas    companies    for 

ferred  to  in  §   1691  R.  S.  are  con-  furnishing  ,  gas,   that  is,  ordinances 

tracts  "for  services  performed,  and  regulating  the  price  of  gas.     lb. 
supplies  furnished  for  the  corpora-  See  further,   on  scope  of  restric- 

tion, Jonas  v.  City,  18  O.  318. 


540  the  ohio  municipal  code. 

Assessors.1 

Sec.  1718  R.  S.  [Election  of  asessors.]  In  municipal  corpo- 
rations divided  into  wards,  an  assessor  shall  be  elected  in  each 
ward  at  every  annual  election.  He  shall  take  the  same  oath, 
give  the  same  bond  and  perform  the  same  duties  as  are  provided 
with  respect  to  township  assessors.  Provided,  that  in  any 
township,  composed  in  part  of  a  municipal  corporation  or  muni- 
cipal corporations,  the  county  commissioners  may,  by  order 
entered  on  their  journal,  constitute  the  territory  outside  such 
municipal  corporation  or  corporations  one  or  more  assessor 
districts,  in  each  of  which  an  assessor  shall  be  elected,  annually, 
in  accordance  with  law.  Provided,  also,  that  nothing  herein 
shall  interfere  with  the  duties  now  devolving  upon  deputy  state 
supervisors  of  elections.  [91  v.  76;  56  v.  156,  §  1;  76  v.  55; 
(S.  &  S.  85).] 

(1)   Title,  division  and  chapter.  ter  are  repealed  by  the  Code,  except 

— Sections  under  this  heading  were  those  given  here,   and    §1721  R.   S. 

contained  in  Chap.  2,  Div.  4,  Title  given  infra. 
XII  R.  S.     All  sections  of  this  chap- 

Sec.  1718a  R.  S.  [Assessors  in  certain  cities  shall  appoint  as- 
sistants; bond  and  oath.]  In  cities  of  the  third  grade  of  the 
first  class  each  ward  assessor  shall,  with  the  approval  of  the 
auditor  of  the  county  in  which  said  city  is  situated,  appoint 
some  well-qualified  citizen  of  such  city  to  act  as  assistant  who 
shall  serve  at  a  compensation  of  two  dollars  per  day  for  each 
day  or  part  of  a  day  actually  employed,  and  ea«h  assistant  so 
appointed  shall  within  the  ward  assigned,  [whom]  under  the 
direction  of  the  assessor  appointing  him,  after  giving  a  bond 
in  the  sum  of  two  hundred  dollars  and  taking  an  oath  as  pre- 
scribed by  law,  performing  [perform]  all  the  duties  enjoined 
upon,  vested  in  or  required  of  assessors,  and  shall  be  subject  to 
all  provisions  of  law  relating  to  assessors.  [1883,  April  18 : 
80  v.  182.] 

Sec.  1718b  (1)  It.  S.  [Assessors  and  assistants  in  Cleveland.] 
In  every  city  of  the  second  grade  of  the  first  class,  not  exceeding 
forty-two  assessors,  and  such  number  of  assistants  as  the  auditor 
shall  deem  necessary,  shall  be  appointed  by  the  county  auditor, 
not  more  than  one-half  of  whom  shall  be  from  the  same  political 
party,  and  such  appointments  shall  be  subject  to  confirmation 
by  the  tax  commission,  and  each  assessor,  and  assistant,  shall 
receive  for  services  a  compensation  of  four  dollars  per  day  for 
each  day  actually  employed  in  the  performance  of  his  duties, 
to  be  paid  out  of  the  county  treasury.     Every  assessor  so  ap- 


OFFICERS.  541 

pointed  shall,  in  addition  to  the  general  duties  hereinafter  pre- 
scribed, perform  the  same  duties  as  are  provided  with  respect  to 
township  assessors,  and  before  entering  upon  his  office  shall  take 
an  oath  and  give  bond  in  the  sum  of  one  thousand  dollars,  pay- 
able to  the  state,  with  two  or  more  freehold  sureties,  approved 
by  said  tax  commission,  conditioned  for  the  faithful  and  im- 
partial performance  of  all  his  duties  so  prescribed,  which  bond, 
with  his  oath  of  office  indorsed  thereon,  shall  be  filed  and  pre- 
served by  the  county  auditor  in  his  office.  'No  person  shall  be 
appointed  or  shall  hold  the  office  of  assessor  under  the  provisions 
of  this  section,  who  holds  or  is  elected  to  any  national,  state, 
county,  municipal  or  township  office,  or  who  is  an  employee  of 
any  national,  state,  county,  municipal  or  township  officer.  [87 
v.  138 ;  88  v.  341 ;  repealed  89  v.  286 ;  re-enacted  94  v.  378.] 

Sec.  1718b  (2)  R.  S.  [Assessors  in  Cincinnati.]  In  cities  of  the 
first  grade  of  the  first  class  assessors  shall  not  be  elected,  but 
the  board  of  review  shall,  on  the  first  Monday  of  April  in  each 
year,  or  as  soon  thereafter  as  said  board  of  review  shall  be 
appointed  and  qualified,  appoint  an  assessor  for  each  ward, 
who  shall  be  a  resident  elector  therein,  and  who  shall  take  the 
same  oath,  give  the  same  bond  and  perform  the  same  duties  as 
are  provided  with  respect  to  township  assessors,  and  in  all 
cases  where  an  assistant  to  such  assessor  shall  be  necessary, 
said  board  of  review  shall  also  appoint  such  assistant,  who  shall 
have  the  same  qualifications  as  such  assessor.  In  making  all 
appointments  of  assessors  said  board  shall  be  governed  solely 
by  considerations  of  fitness  for  the  duties  of  the  office,  and  shall 
entirely  disregard  political  opinions  and  party  affiliations.  [88 
v.  225.] 

Sec.  1718c  R.  S.  [Assessors  in  Springfield  and  Ports- 
mouth..] In  cities  of  the  second  class,  third  grade  a,  and 
third  grade  c,  there  shall  be  appointed  by  the  board  of  tax 
commissioners,  in  April  of  each  year,  an  assessor  for  each 
ward,  who  shall  be  an  elector  thereof,  and  shall  take  the  same 
oath,  and  give  the  same  bond,  receive  the  same  compensation, 
and  perform  the  same  duties  as  are  provided  in  respect  to  town- 
ship assessors.      [93  v.  614;  89  v.  18;  88  v.  160.] 

County  Treasurer  having  charge  of  City  and   School 

Funds. 

Sec.  1721 R.  S.  [Oath,  bond,  etc.,  of  county  treasurer;  exami- 
nation of  funds.]  In  all  cases  where  the  treasurer  of  a  county 
becomes  treasurer  of  the  city  and  school  funds  by  virtue  of 
other  provisions  of  this  title,1  he  shall  qualify  in  every  respect 
as  if  he  were  elected  to  the  office,  by  taking  the  official  oath 


542  THE    OHIO    MUNICIPAL    CODE. 

and  giving  separate  bonds  acceptable  severally  to  the  city  coun- 
cil and  school  board  of  such  city;  said  bond  as  city  treasurer 
shall  be  made  a  part  of  the  record  of  the  proceedings  of  the 
city  council  when  accepted  and  approved,  and  shall  be  care- 
fully preserved  by  the  city  clerk,  and  the  bond  as  treasurer  of 
school  funds  shall  be  made  a  part  of  the  record  of  the  pro- 
ceedings of  the  board  of  education,  when  accepted  and  ap- 
proved, and  shall  be  carefully  preserved  by  the  clerk  of  said 
board;  and  in  all  examinations  of  the  county  funds  by  the 
auditor  and  county  commissioners,  as  provided  by  law,  there 
shall,  at  the  same  time  and  in  the  same  manner,  be  an  examin- 
ation of  the  city  and  school  funds  by  at  least  one  person  for 
each  fund,  who  shall  be  appointed  by  the  county  commissioners ; 
and  in  examinations  of  the  county  treasury,  by  order  of  the 
probate  judge,  the  accountants  appointed  by  the  judge  shall 
count,  examine  and  certify  as  to  the  condition  of  the  city  and 
school  funds  at  the  same  time,  and  in  the  same  manners  as 
required  by  law  in  regard  to  the  county  funds,  [88  v.  85; 
70  v.  66,  §  1.] 

(1)  This  refers  to  Title  XII.  R.  S. 

Mayor.1 

Sec.  1744  R.  S.  [Jurisdiction,  powers,  etc.,  of  mayor.]  The 
mayor  shall  be  a  conservator  of  the  peace  throughout  the  cor- 
poration, and  within  the  limits  of  the  same  shall  have  all  the 
jurisdiction  and  powers  of  a  justice  of  the  peace  in  all  civil 
cases,  and  his  proceedings  therein  may  be  reviewed  in  the 
same  manner,  and  he  shall  have  jurisdiction  in  criminal  cases  as 
hereinafter  provided.2  [66  v.  169,  §  114;  (S.  &  C.  1510, 
1511).] 

( 1 )   Title,  division  and  chapter.  Other  sections  in  Chap.  5,  relating 

—  The  sections  included  under  this  to  these  offices,  and  not  repealed,  are 

heading    and    under    the    headings  re-enacted  in  the  Code. 

"  Clerk "      and      "  Street     Commis-  For  re-enacted  sections  relating  to 

sioner,"  form  part  of  Chap.  5,  Div.  the  mayor,  see   §§    129   and  200  of 

4,  Title  XII.  R.  S.    Under  the  head-  the  Code. 

ings       "Solicitor,"       "Treasurer,"  (2)    Concurrent  jurisdiction.  — 

"Auditor"  and  "Sealer  of  Weights  Under  §  1744  R.  S.  the  jurisdiction 

and    Measures "    are    included,    be-  of   the  mayor  in  bastardy  cases  is 

sides    the    unrepealed     sections    of  concurrent  with  that  of  a  justice  of 

Chap.  5,  not  re-enacted,   (except  sec.  the  peace.  Miller  v.  Oehler,  36  0.  S. 

1122a,  repealed  in  1904),  some  sec-  624. 

tions  relating  to  those  offices,  found  §  1831  R.  S.  confers  on  police  jus- 

in  other  parts  of  the  Revised  tices  the  same  power  to  hear  and  de- 
Statutes. 


OFFICERS. 


543 


termine  eases  that  the  mayor  has. 
Morgan  v.  Tighe,  12  C.  C.  719. 
Jurisdiction  in  damage  cases. 

— Mayor  has  jurisdiction  in  a  suit 
for  damages  against  a  railroad  com- 
pany. R.  R.  Co.  v.  Scahill,  33  B.  250. 
Validity. — Act  conferring  juris- 
diction and  powers  of  a  justice  of 
the   peace,    on   mayors,   is   constitu- 


tional. Steamboat  Indiana  v.  Mill:- 
ken,  7  O.  S.  383. 

Powers. — Mayor  is  not  author- 
ized to  accept  money  in  lieu  of  bail. 
Columbus  v.  Dunnick,  41  O.  S.  602. 

In  prosecutions  for  violation  of  or- 
dinances, it  is  not  error  to  refuse  a 
change  of  venue.  Volk  v.  Wester- 
ville,  3  N.  P.  (N.  S.)  241. 


Sec.  1745  R.  S.  [Duties,  fees,  office,  etc.]  He  shall  keep  a 
docket,  and  shall  be  entitled  to  receive  the  same  fees  that  are 
or  may  be  allowed  justices  of  the  peace  for  similar  services,1 
and  he  shall  keep  an  office  at  some  convenient  place  in  the  cor- 
poration, to  be  provided  by  the  council,  and  shall  be  furnished 
by  the  council  with  the  corporate  seal  of  the  corporation,2  in 
the  center  of  which  shall  be  the  words,  "Mayor  of  the  city  of 

,"  or,  "Mayor  of  the  village  of ,"  as  the  case 

may  be.3     [66  v.  169,  §  115.] 


(1)  When  fees  not  allowed. — 

Where  salary  of  mayor  is  fixed  and 
it  is  further  provided  that  he  shall 
not  be  allowed  fees  for  any  services 
performed,  except  those  provided  by 
law,  the  fees  received  are  for  the 
benefit  of  the  municipality.  Hatch 
v.  Cincinnati,  17  O.  S.  48. 

An  officer  whose  fees  are  regulated 
by  statute  can  charge  fees  for  those 
services  only  to  which  compensation 
is  by  law  fixed.  Debolt  v.  Trustees, 
7  O.  S.  237. 

Fees  in  state  cases  need  not  be 
turned  into  city  treasury,  notwith- 


standing   §  126    of    the    Code.      See 
§  126  and  note  4  thereunder,  p.  32G. 

(2)  Execution  of  corporation 
deed. — To  £he  mayor  is  confided  the 
corporate  seal  and  he  is  the  chief 
administrative  and  executive  officer 
and  it  would  seem  is  the  proper  per- 
son to  sign  deed  by  corporation. 
Tiffin  v.  Shawhan,  43  O.  S.  178,  186. 

Whether  council  can  authorize 
clerk  to  execute  a  deed  for  city  is  a 
question.    lb. 

(3)  See  §  7  of  the  Code,  p.  43  and 
note   (3)   thereunder. 


Sec.  1752  R.  S.  [Appeal  and  error.]  Appeals  may  be  taken 
from  the  decision  of  the  mayor  in  civil  cases,  in  the  same  man- 
ner as  from  justices  of  the  peace:  provided,  that  when  a  city 
or  village  extends  into  two  or  more  counties,  the  appeal  shall 
be  taken  to  the  court  of  common  pleas  of  the  county  in  which 
one  or  more  of  the  defendants  reside:  a' conviction  under  an 
ordinance  of  any  municipal  corporation  may  be  reviewed  by  pe- 
tition in  error,  in  the  same  manner  and  to  the  same  extent  as 
was  heretofore  permitted  on  writs  of  error  and  certiorari,  and 
the  judgment  of  affirmance  or  reversal  may  be  reviewed  in  the 
same  manner ;  and  for  this  purpose  a  bill  of  exceptions  may  be 
taken,1  or  a  statement  of  facts  embodied  in  the  record  on  the 
application  of  any  party ;  but  no  such  petition  shall  be  filed  ex- 
cept on  leave  of  the  court  or  a  judge  thereof,2  and  such  court  or 


544 


THE    OHIO    MUNICIPAL    CODE. 


judge  has  power  to  suspend  the  sentence,  as  in  criminal  cases.3 
[66  v.  170,  §  125 ;  72  v.  42,  §  1.] 


(1)  Allowing  bill  of  excep- 
tions.—  Mayor  has  no  authority  to 
extend  the  time  for  preparing  a  bill 
of  exceptions  in  the  prosecution  for 
a  violation  of  an  ordinance.  Nor  is 
there  any  statute  making  the  pro- 
visions of  the  civil  practice  before  a 
justice  of  the  peace  applicable  to 
criminal  prosecutions  before  the 
mayor.  Village  of  Bradner  v.  Grun- 
detisch,  15  C.  C.  32.  But  see  Ger- 
mantown  v.  Basore,  22  C.  C.  417, 
421. 

Review  on  weight  of  evidence. 
—  Former  statutes  provided  that 
conviction  in  police  court  might  be 
examined  into  by  upper  court  on 
writ  of  error  and  reviewed  on 
weight  of  evidence.  The  present  sec- 
tion merely  changes  the  remedy  and 
allows  a  bill  of  exceptions,  but  does 
not  interfere  with  review  on  weight 
of  evidence.    Slaughter  v.  Columbus, 


61  O.  S.  53 ;  Germantown  v.  Basore, 
22  C.  C.  417.  For  holding  under 
former  law,  see  Van  Buskirk  v.  New- 
ark, 26  O.  S.  37. 

This  section  only  applies  where 
judgment  is  for  violation  of  a  mu- 
nicipal ordinance.  Fike  v.  State,  4 
C.  C.   (N.  S.)  81,  25  C.  C.  554. 

(2)  Leave  to  file  petition  in 
error. —  Conviction  in  mayor's  court 
for  breach  of  ordinance  may  be  re- 
viewed by  Court  of  Common  Pleas, 
but  leave  to  file  a  petition  in  error 
is  a  condition  precedent.  Miller  v. 
Bellefontaine,  2  C.  C.  139. 

And  refusal  of  Common  Pleas 
Court  to  allow  a  petition  in  error  to 
be  filed  is  not  reviewable  in  the  Cir- 
cuit Court.  Canfield  v.  Brobst,  71 
O.  S.  42. 

(3)  Power  to  suspend  sen- 
tence.— A  mayor  cannot  suspend 
sentence  and  take  bond  unless  an  or- 
der to  do  so  is  made  by  Court  of 
Common  Pleas.  Scio  v.  Hollis,  7  N. 
P.  281,  282. 


Clerk.1 


Sec.  1760 U.S.  [Clerk  of  court  shall  record,  etc.]  The  clerk 
of  the  court  of  common  pleas  shall  record  the  certificates  men- 
tioned in  the  last  section,2  in  the  book  in  which  the  record  of 
the  election  and  qualification  of  justices  of  the  peace  are 
kept ;  and  the  same  fees  shall  be  allowed  to  the  officers  certify- 
ing and  recording  the  same  as  are  allowed  for  certifying  and 
recording  the  election  and  qualification  of  justices  of  the  peace. 
[66  v.  171,  §  133;  (S.  &  C  1536).] 


(1)  Title,  division  and  chapter. 

See  note  (1)  under  §  1744  lv.  S. 
supra.  For  re-enacted  sections  re- 
lating to  the  clerk,  see  §§  134  and 
201  of  the  Code. 

(2)  The    section   referred   to    it 


1759  R.  S.),  is  re-enacted  in  §§  134 
and  201  of  the  Code.  It  relates  to 
the  duty  of  the  clerk  to  certify  to 
the  court  the  election  of  certain  of- 
ficers. 


Treasurer.1 

Sec.  1771  R.  S.  [Duty  of  county  treasurer.]  The  county  treas- 
urer shall,  on  the  first  Monday  of  February  and  August  in  each 
year,  pay  over  to  the  treasurer  of  the  corporation  all  moneys 


OFFICERS.  545 

received  by  him  up  to  that  date  arising  from  taxes  levied  and 
assessments  made  belonging  to  the  corporation.2  [66  v.  175, 
§  155.] 

( 1 )  Title,  division  and  chapter.  —  County  treasurer  must  pay  over 
— See  note  (1)  under  §  1744  R.  S.,  to  treasurer  of  municipality  all 
p.  542.  For  re-enacted  sections  re-  moneys  arising  from  taxes  and  as- 
lating  to  municipal  treasurer,  see  §  sessments  belonging  to  the  corpora- 
135  of  the  Code.  tion,   although   paid   under   protest. 

(2)  Money  paid  under  protest.  Ratterman  v.  State,  44  O.  S.  641. 

Sec.  1773  R.  S.  [Duty  of  outgoing  treasurer  as  to  delivering 
money,  etc.,  to  successor.]  The  corporation  treasurer,  and  the 
county  treasurer,  when  acting  as  such,  shall  each,  at  the  ex- 
piration of  his  term  of  office,  or  on  his  resignation  or  re- 
moval, deliver  to  his  successor,  all  moneys,  books,  papers  and 
other  property  in  his  possession  as  treasurer;  and  in  the  case 
of  the  death  or  incapacity  of  such  treasurer,  his  legal  repre- 
sentatives shall,  in  like  manner,  pay  over  and  deliver  the 
money  and  property  which  was  so  in  the  treasurer's  hands, 
to  the  person  entitled  thereto.  [55  v.  92,  §  22 ;  S.  &  C. 
1602.] 

Sec.  1047  R.  S.  [How  the  county  auditor  shall  keep  acounts 
with  townships,  cities,  villages,  hamlets,  .and  special  school  dis- 
tricts.] The  auditor  shall  open  an  account  with  each  township, 
city,  village,  hamlet,  and  special  school  district  in  his  county, 
in  which,  immediately  after  his  semi-annual  settlement  with 
the  treasurer,  in  February  and  August  of  each  year,  he  shall 
credit  each  with  the  net  amount  so  collected  for  its  use;  and 
on  application  of  any  township,  city,  village,  hamlet,  or  school 
treasurer,  the  auditor  shall  give  him  a  warrant  on  the  county 
treasurer,  for  the  amount  then  due  to  such  treasurer,  and  shall 
charge  him  with  the  amount  of  such  warrant ;  but  the  person  so 
applying  for  such  warrant,  shall  deposit  with  the  auditor  a  cer- 
tificate from  the  clerk  of  the  township,  city,  village,  hamlet,  or 
district,  stating  that  such  person  is  treasurer  thereof,  was  duly 
elected  or  appointed,  and  that  he  has  given  bond  according  to 
law.1      [56  v.  128,  §  22;  S.  &  C.  100.] 

(1)    Mandamus       to        compel  er   orders.     Cass  Tp.  v.   Dillon,   16 

treasurer    to    pay    over    money,  0.  S.  38. 

may  be  allowed,  where  treasurer  re-  Section  cited,  Brown  v.  Van  Wert, 

fuses,  upon  presentation  of  the  prop-  4  C.  C.  407,  422. 

Sec.  1122  R.  S.  [County  treasurer's  payments  to  local  treasur- 
ers.]      The  county  treasurer  shall,  immediately  after  each  semi- 


546  THE    OHIO    MUNICIPAL    CODE. 

annual  settlement  with  the  auditor  of  his  county,  on  demand, 
and  presentation  of  the  warrant  of  the  county  auditor  therefor, 
pay  over  to  the  township  treasurer,  city  treasurer,  or  other  prop- 
er officer,  all  moneys  in  the  county  treasury  belonging  to  any 
township,  city,  village,  hamlet,  or  school  district;  but  if  any 
township  treasurer  or  other  proper  officer  aforesaid,  requires,  or 
the  trustees  of  any  township,  the  council  of  any  city,  village, 
hamlet,  or  the  board  of  education  of  any  school  district,  respec- 
tively, so  direct,  the  moneys  mentioned  in  this  section  shall 
remain  in  the  county  treasury,  to  be  thence  drawn  by  the  proper 
local  treasurer  on  the  warrant  of  the  county  auditor,  in  sums  of 
not  less  than  one  hundred  dollars.  And  if  any  county  treas- 
urer shall  retain,  or  if  any  township  treasurer,  or  other  local 
treasurer  shall  permit  to  remain  in  the  county  treasury,  the 
moneys  mentioned  in  this  section,  in  any  other  manner  than 
herein  provided,  the  party  so  offending  shall  forfeit  and  pay 
for  every  such  offense  a  sum  not  exceeding  one  thousand  dol- 
lars, nor  less  than  one  hundred  dollars,  to  be  recovered  in  an 
action  at  the  suit  of  the  state,  for  the  use  of  the  county.1 
[1889,  March  28 :  86  v.  168 ;  Rev.  Stat.  1880 ;  56  v.  101,  §  12 ; 
(S.  &  C.  1478).] 

(1)   See  §  1771  R.  S.,  p.  544. 


Sec.  1123  R.  S.  [Advance  payments  may  be  made  to  local 
authorities.]  Whenever  the  local  authorities  so  request,  the 
county  auditor  may  draw,  and  the  county  treasurer  shall  pay 
on  such  draft  to  township,  city  and  village  treasurers,  and  the 
treasurer  of  any  board  of  education,  from  June  twentieth  and 
December  twentieth  to  the  date  of  the  semi-annual  distribution, 
each  year,  any  sum  not  exceeding  two-thirds  of  the  current  col- 
lection of  taxes  for  such  local  authorities,  respectively,  in  ad- 
vance of  the  semi-annual  settlements.  [1904,  April  25,  97  v. 
378;  86  v.  43;  70  v.  184.] 

[An  act  to  provide  for  the  release  and  discharge  of  county,  city,  vil- 
lage, township  and  school  district  treasurers  and  their  sureties  in  cer- 
tain cases.! 

[Sec.  1.]  [Provisions  for  release  and  discharge  of  county, 
city,  village,  township  or  school  district  treasurers  and  their 
sureties  in  certain  cases.]  When  without  fault  or  negligence  of 
the  officer  entrusted  by  law  with  the  care  of  the  same,  a  loss  of 
public  funds  entrusted  to  a  county,  city,  village,  township  or 
school  treasurer,  by  virtue  of  his  office,  is  caused  by  fire,  rob- 
bery, burglary  or  inability  on  the  part  of  the  bank  to  refund 


officers.  546a 

public  money  lawfully  in  its  possession  belonging  to  such 
public  funds;  the  county  commissioners,  in  case  of  such  loss 
by  a  county  treasurer,  and  the  city  or  village  council,  town- 
ship trustees  and  boards  of  education,  in  like  cases  of  loss 
by  city,  village,  township  and  school  treasurers,  respectively, 
are  hereby  authorized  and  empowered,  to  release  and  dis- 
charge such  treasurer  and  the  sureties  upon  his  official  bond 
from  all  liability  to  or  demands  of  the  county,  city,  village, 
township  or  school  district  interested,  for  such  loss  so  created 
and  arising;  provided  that  before  such  release  and  discharge 
shall  be  affected  such  board  of  county  commissioners,  city  or 
village  council,  township  trustees  or  board  of  education,  effect- 
ing such  release  and  discharge,  shall  find ;  that  such  loss  of 
public  funds  was  not  occasioned  by  the  fault  or  negligence 
of  such  treasurer,  and  shall  cause  an  entry  of  such  finding  to 
be  made  upon  the  record  book  of  the  proceedings  of  the 
council  or  board;  provided  further  that  in  case  of  loss  by 
county  treasurers,  the  county  commissioners,  and  in  cases  of 
loss  by  city  or  village  treasurers,  the  city  or  village  council, 
and  in  cases  of  loss  by  township  treasurers,  the  township 
trustees,  and  in  cases  of  loss  by  school  treasurers,  the  board  of 
education  of  the  school  district ;  having  first  made  and  caused 
to  be  entered  the  finding  of  no  fault  or  negligence  as  above 
provided,  may  and  they  are  hereby  authorized,  at  the  next  en- 
suing general  election  to  be  held  in  such  county,  city,  village, 
township  or  school  district,  respectively,  to  submit  to  the  quali- 
fied electors  of  said  county,  city,  village,  township  or  school  dis- 
trict interested  the  question  of  discharging  such  treasurer  and 
the  sureties  upon  his  official  bond  from  liability  on  account  of 
such  loss  of  funds. 

Provided  further  that  whenever  twenty-five  per  cent,  of 
the  qualified  electors  of  such  county,  in  cases  of  county  treas- 
urers, or  a  like  percentage  of  qualified  electors  in  cases  of  city, 
village,  township  or  school  treasurers,  shall  petition  the  coun- 
cil or  board  for  the  privilege  to  determine  by  ballot  whether 
any  treasurer  and  the  sureties  on  his  official  bond  shall  be 
released  and  discharged,  such  council  or  board  shall,  and  they 
are  hereby  required  to  submit  such  question  to  the  qualified 
electors  of  said  county,  city,  village,  township  or  school  dis- 
trict interested,  as  herein  provided.  Provided  that  any  tax- 
payer of  the  county,  township,  municipality  or  school  district 
affected  may  within  five  days  after  any  finding  of  release  or 
discharge  provided  for  in  this  act  is  made,  take  an  appeal 
therefrom  to  the  common  pleas  court  of  the  county,  and  until 
such  appeal  is  finally  determined  such  finding  and  other  pro- 
ceedings shall  not  affect  such  release  and  discharge.  Notice 
in  writing  of  such  intention  to  appeal  shall  be  filed  with  the 
-clerk  or  auditor  of  the  board  or  council  making  such  finding 
within  five  days  thereafter,  and  a  transcript  of  the  said  find- 


546&  THE    OHIO    MUNICIPAL    CODE. 

ing  and  other  proceedings  shall  within  thirty  days  after  said 
finding  be  filed  in  said  common  pleas  court  and  docketed 
therein  as  other  cases.  Whereupon  the  court  shall  proceed  to 
try  and  determine  the  question  whether  such  public  funds  were 
lost  by  the  fault  or  negligence  of  such  treasurer ;  and  in  case  it 
be  found  that  they  were,  the  finding  of  the  board  or  council 
below  ordering  such  discharge  shall  be  vacated;  but  in  case 
they  were  not,  then  such  finding  shall  remain  in  full  force,  and 
the  court  shall  cause  its  judgment  to  be  certified  to  the  board 
or  council  making  such  finding.     [1906,  April  11,  98  v.  122.] 

[Sec.  2.]  [How  question  of  release  submitted  to  vote;  notice^ 
etc.]  The  deputy  state  supervisors  of  elections  of  the  county 
interested  or  within  which  such  city,  village,  township  or 
school  district  is  located,  shall  cause  notice  of  the  submission 
of  said  proposition  to  the  electors ;  in  case  of  relief  of  county  or 
city  treasurers  by  publication  in  two  newspapers  of  opposite 
politics  in  said  county  or  city  for  at  least  thirty  (30)  days  next 
prior  to  the  date  upon  which  such  election  is  to  be  held,  and  in 
case  of  relief  of  village  or  township  treasurers  twenty  (20) 
days'  notice  of  such  election  shall  be  given  by  posting  notices 
thereof  in  five  (5)  public  places  within  the  village  or  township; 
and  in  cases  for  the  relief  of  school  treasurers,  ten  (10)  days' 
notice  of  such  election  shall  be  given  by  posting  notices  thereof 
in  five  (5)  public  places  in  the  school  district  interested. 
[1906,  April  11,  98  v.  122.] 

[Sec.  3.]  [Ballots,  how  printed.]  The  ballots  for  said  elec- 
tion shall  have  printed  thereon,  "Discharge  of  treasurer  and 
sureties — yes."  "Discharge  of  treasurer  and  sureties — no." 
And  shall  have  a  place  at  the  left  of  each  proposition  for  the 
voter  to  mark  according  to  law,  the  proposition  he  favors. 
[1906,  April  11,  98  v.  122.] 

[Sec.  4.]  [Entry  of  result  of  election.]  If  a  majority  of  the 
votes  cast  upon  such  proposition  at  such  election  shall  be  in 
favor  of  the  discharge  of  the  said  treasurer  and  his  said  sure- 
ties, the  board  of  county  commissioners  in  cases  of  county 
treasurers,  and  the  city  or  village  council  in  cases  of  village 
treasurers,  and  the  township  trustees  in  cases  of  township 
treasurers,  and  boards  of  education  in  cases  of  school  district 
treasurers,  shall  cause  to  be  made  an  entry  of  the  result  of  the 
election  in  the  record  book  of  proceedings  of  the  council  or 
board  ordering  such  election  and  shall  thereupon  release  and 
discharge  said  treasurer  and  his  sureties  on  his  official  bond 
from  all  liability  on  account  of  such  loss.  But  if  a  majority 
of  the  votes  cast  shall  be  against  such  discharge  then  entry  of 
such  result  of  such  election  shall  be  made  in  the  record  book 
of  proceedings  of  the  council  or  board  ordering  such  election 
and  no  further  action  therein  shall  be  taken  by  such  council 
or  board.     [1906,  April  11,  98  v.  122.] 


officees.  547 

Auditor.1 

An  act  authorizing  and  directing  the  city  auditors  and  account- 
ing officers  of  municipal  corporations  to  credit  to  the  general 
fund  all  cash  balances  remaining  in  any  fund  which  can  no  longer 
be  used  for  the  purpose  for  which  it  was  created. 

[Sec.  1.]  [Transfer  to  general  fund  of  cash  balances  remaining 
in  any  fund  which  can  no  longer  be  used  for  the  purpose  for  which 
created.]  That  whenever  any  municipal  corporation  in  this 
state  has  been  authorized  by  any  special  or  general  act  to  issue 
bonds  or  otherwise  to  create  a  fund  for  any  public  improvement, 
and  the  authority  so  conferred  has  been  exercised  or  exhausted 
by  said  municipal  corporation,  or  the  act  authorizing  the  crea- 
tion of  such  fund  has  been  declared  invalid  by  the  judgment 
of  any  court  of  competent  jurisdiction,  and  there  remains  a  cash 
balance  in  said  fund  unexpended,  for  the  purpose  for  which 
it  was  created,  the  auditor  or  other  accounting  officer  of  said 
municipal  corporation  is  directed  and  authorized  to  immediate- 
ly transfer  such  cash  balance  to  the  credit  of  the  general  fund 
of  such  corporation. 

[Sec.  2.]  [Same.]  That  whenever  in  any  municipal  corpora- 
tion there  exists  at  the  end  of  the  year,  to-wit,  on  the  31st 
day  of  December,  a  cash  balance  in  any  fund,  other  than  a  fund 
created  for  some  public  improvement,  and  for  any  reason  the 
said  cash  balance  can  no  longer  be  lawfully  used  for  the  purpose 
or  purposes  for  which  the  fund  was  created,  it  shall  be  the 
duty  of  the  auditor  or  other  accounting  officer  of  such  municipal 
corporation  to  transfer  said  cash  balance  so  remaining  at  the 
end  of  the  year  to  the  general  fund  of  said  corporation. 

[Sec.  3.]  [Effect  of  transfer.]  When  any  of  the  moneys  au- 
thorized in  this  act  to  be  transferred  to  the  general  fund  of  any 
municipal  corporation  have  been  so  transferred  said  moneys 
shall  be  available  for  the  general  purposes  of  the  corporation, 
as  other  moneys  in  said  general  fund.  [May  12,  1902 :  95  v 
596.] 

(1)  For  re-enacted  sections  relating  to  auditor,  see  §  134  of  the  Code. 


548 


THE    OHIO    MUNICIPAL    CODE. 
SOLICITOE.1 


Sec.  1774  R.  S.  [Duties  of  solicitor  or  corporation  counsel  as  to 
suits.]  The  solicitor  or  corporation  counsel  shall,  whenever 
required  so  to  do  by  resolution  of  the  council,  or  of  the  council 
or  board  of  administration  in  cities  of  the  first  grade  of  the 
first  class,  or  of  the  council  or  board  of  control  in  cities  of  the 
second  grade  of  the  first  class,  prosecute  or  defend,  as  the  case 
may  be,  for  and  in  behalf  of  the  corporation,  all  complaints, 
suits  and  controversies  in  which  the  corporation  is  a  party, 
except  cases  before  the  police  court  where  there  is  a  prosecuting 
attorney  for  such  court  and  such  other  suits,  matters  and  con- 
troversies as  he  shall,  by  resolution  or  ordinance,  be  directed  to 
prosecute;  but  shall  not  be  required  to  prosecute  any  action 
before  the  mayor  for  the  violation  of  any  ordinance  without 
first  advising  such  action.2  [90  v.  132 ;  85  v.  249 ;  Kev.  Stat. 
1880;  66  v.  175,  §157.] 


( 1 )  Title,  division  and  chapter. 

—  See  note  (1)  to  §  1744  R.  S.,  p. 
542.  For  re-enacted  sections  relat- 
ing to  solicitor,  see  §  137  of  the 
Code. 

(2)  Duties  of  solicitor.— The 
solicitor  is  a  public  officer  elected 
by  the  people,  and,  when  required  to 
do  so  by  resolution  of  council,  he 
shall  prosecute  and  defend  for  and 
in  behalf  of  corporation,  except  in 
certain  cases.  State  ex  rel.  v.  Boyce, 
43  0.  S.  46,  52. 

Not  necessary  that  city  solicitor 
sign  petition.  Deatrick  v.  City  of 
Defiance,  1  C.  C.  340,  342. 

City  solicitor  is  not  attorney  or 
counsel  for  police  commissioners. 
Yaple  v.  Commissioners,  2  C.  C.  406. 

It  is  the  duty  of  the  solicitor  to 
furnish  vouchers  in  condemnation 
cases  when  required  of  him  by  city 
ordinance,  and  mandamus  will  lie  on 
his  failure  to  do  so.  Ryan  v.  Hoff- 
man, 26  O.  S.  109. 

Whether  solicitor  can  bring  suit, 
not  under  power  given  by  §  1777 
R.  S.,  without  resolution  of  council 
instructing  him  to  do  so,  see  State 
ex  rel.  v.  Boyce,  43  O.  S.  46,  52; 
Toledo  v.  Toledo  Ry.  &  Light  Co.,  2 
C.  C.  (N.  S.)  97. 


An  entry  endorsed  by  the  citj 
solicitor,  but  filed  subsequent  to  his 
retirement  from  office,  no  notice 
thereof  being  given  to  his  succes- 
sor, is  not  in  compliance  with  the 
rule  of  court  providing  that  when 
an  entry  is  approved  by  counsel  it 
shall  be  so  endorsed  and  presented 
to  the  court.  Wolcutt  v.  Columbus, 
13  Dec.  561. 

The  word  "  person "  as  used  in 
Section  5321  R.  S.,  applies  to  mu- 
nicipal corporation.  Hence,  when  a 
municipal  corporation  attempts  to 
confess  judgment  under  the  pro- 
visions of  Sections  5321  and  5322 
R.  Sv  it  is  necessary  to  the  validity 
of  such  proceeding  that  the  city's 
legal  representative  appear  in  open 
court  and  confess  judgment  on  be- 
half of  the  city.     76. 

The  city  solicitor,  as  legal  ad- 
viser of  the  city,  has,  as  such  rep- 
resentative, the  standing  to  ask  a 
revocation  of  proceedings  by  which 
a  judgment  by  default  and  on  con- 
fession was  obtained,  notwithstand- 
ing that  the  city  council  itself  has 
not  applied  to  the  court  for  such 
revocation.     lb. 


OFFICERS.  549 

Sec.  1775  R.  S.     [City  solicitor  shall  give  opinions;  Cincinnati.] 

When  any  officer  of  the  corporation  entertains  doubts  concern- 
ing the  law  in  any  matter  before  him  in  his  official  capacity, 
and  desires  the  opinion  of  the  solicitor,  he  shall  clearly  state 
to  the  solicitor,  in  writing,  the  question  upon  which  the  opinion 
is  desired,  and  thereupon  it  shall  be  the  duty  of  the  solicitor, 
within  a  reasonable  time,  to  reply  orally  or  in  writing  to 
every  such  inquiry;  and  the  right  here  conferred  upon  officers 
shall  extend  to  the  council,  and  to  each  board  provided  for 
in  this  title:  provided,  however,  that  in  cities  of  the  first  grade 
of  the  first  class,  the  city  solicitor  shall,  in  his  official  capacity, 
also  act  as  the  legal  adviser  of,  and  attorney  for  the  board  of 
police  commissioners.1  [1888,  April  13:  85  v.  225;  Kev. 
Stat.  1880.] 

( 1 )   See  Yaple  v.  Commissioners,     Classes   under  new   Code "  under   § 
2  C.  C.  406.     See  note  "  Grades  and      1599  R.  S.,  p.  31. 

Sec.  3977.  [Prosecuting  attorney  or  city  solicitor  to  act  as 
counsel  of  school  boards.]  The  prosecuting  attorney  shall  be 
the  legal  adviser  of  all  boards  of  education  in  the  county  in 
which  he  is  serving,  except  in  city  school  districts,  he  shall 
prosecute  all  actions  against  a  member  or  officer  of  a  board 
of  education  for  malfeasance  or  misfeasance  in  office,  he  shall 
be  the  legal  counsel  of  said  boards  or  the  officers  thereof  in  all 
civil  actions  brought  by  or  against  them  and  shall  conduct  the 
same  in  his .  official  capacity ;  provided,  that  when  said  civil 
action  is  between  two  or  more  boards  of  education  in  the  same 
county  said  prosecuting  attorney  shall  not  be  required  to  act  for 
either  of  them.  In  city  school  districts  the  city  solicitor  shall 
be  the  legal  adviser  and  attorney  for  the  board  of  education 
and  shall  perform  the  same  services  for  said  board  of  education 
as  is  herein  required  of  prosecuting  attorneys  for  other  boards 
of  education.  The  duties  herein  prescribed  shall  devolve  upon 
any  official  serving  in  a  capacity  similar  to  that  of  prosecuting 
attorney  or  city  solicitor  for  the  territory  wherein  a  school  dis- 
trict is  situated,  regardless  of  his  official  designation.  !Nb 
prosecuting  attorney,  city  solicitor  or  other  official  acting  in  a 
similar  capacity  shall  be  a  member  of  the  board  of  education. 
No  compensation  in  addition  to  such  officers'  regular  salary 
shall  be  allowed  for  such  services.  [1904,  April  25,  97  v.  355 ; 
79  v.  26;  70  v.  195.] 


550  THE    OHIO    MUNICIPAL    CODE. 


Street  Commissioner.1 


Sec.  1782  K.  S.  [Duties  of  various  officers,  and  their  compensa- 
tion.] In  municipal  corporations  that  have  a  street  commis- 
sioner, fire  engineer,  civil  engineer,  or  superintendent  of 
markets,  those  officers  shall  severally  perform  the  duties  pre- 
scribed by  this  title,  and  such  other  duties  not  incompatible 
with  the  nature  of  their  office,  as  the  council  may  by  ordinance 
require;  and  each  shall  receive  such  compensation  for  his 
services,  by  fees  or  salary,  or  both,  as  may  be  provided  by 
ordinance.      [66  v.   176,   §§   164,   165.] 

( 1 )  Title,  division  and  chapter.  For  provisions  relating  to  street 
See  note  (1)  to  §  1744  R.  S.,  p.  542.       commissioner,  see  §  203  of  the  Code. 


Sealer  of  Weights  and  Measures.1 

Sec.  1783  R.  S.  [Duty  of  sealer  of  weights  and  measures.] 
The  city  or  village  sealer  shall,  at  least  once  in  three  years, 
compare  the  copies  of  the  standards  in  his  possession  with 
those  in  the  office  of  the  county  sealer.2      [58  v.  78,  §  10 ;  S, 

6  S.  925.] 

(1)  Title,  division  and  chapter.  But  power  to  provide  for  weigh- 
See  note  (1)  to  §  1744  R.  S.,  p.  542.  ing  and  measuring  articles  sold  does 
For  authority  to  regulate  weighing  not  authorize  an  ordinance  forbid- 
and  measuring,  see  paragraph  12,  §  ding  the  delivery  of  an  article  sold 

7  of  the  Code,  page  52.  outside  the  city,  unless  weighed  by 

(2)  Power  of  council. —  Under  city  weigher.  Heminger  v.  Cleve- 
the      general      laws      relating      to      land,  3  W.  L.  M.  46. 

weights    and    measures    a    munici-  A  city  may  by  ordinance  appoint 

pality  would  have  power  to  appoint  a    city    weigher   but    cannot   forbid 

an   inspector,   or   sealer   of   weights  others  from   following  the  business 

and   measures,    and    to   enforce,    by  of  a  weigher.     Cincinnati  v.  Broad' 

fine,  the  use  of  weights  and  meas-  well,  3  Dec.  (Re)  286. 
ures  sealed  by  such  inspector.     Hud- 
dleson  v.  Ruffin,  6  O.  S.  604. 

Sec.  1784  R.  S.  [Comparison  and  sealing  weights  and  meas- 
ures.] The  city  or  village  sealer  shall  compare  all  weights  and 
measures  which  are  brought  to  him  for  that  purpose,  with  the 


OFFICERS.  551 

copies  in  his  possession,  and  when  such  weights  and  measures 
are  made  exactly  to  agree  with  said  copies,  he  shall  seal  and 
mark  such  weights  and  measures.  [58  v.  78,  §  11 ;  S.  & 
S.  925.] 

Sec.  1061  R.  S.  *  *  *  *  *  [Sealer  of  weights  and  measures  in 
Toledo;  appointment,  etc.]  Provided,  however,  that  in  cities 
of  the  third  grade  of  the  first  class  there  shall  be  appointed  by 
the  mayor,  and  confirmed  by  the  common  council,  one  sealer 
of  weights  and  measures,  a  competent  person  for  the  position, 
who  shall  receive  a  salary  of  fifteen  hundred  ($1,500)  dollars 
per  annum,  to  be  paid  by  the  city,  and  which  shall  be  in  lieu 
of  all  fees  or  charges  otherwise  allowed  by  law.  Such  sealer 
shall  hold  his  office  for  a  term  of  two  years  and  until  his  suc- 
cessor is  appointed  and  qualified,  and  he  shall  be  authorized 
to  appoint  a  competent  deputy,  at  his  own  expense,  to  assist 
him  in  the  performance  of  his  duties.  Before  entering  on  his 
duties,  such  sealer  shall  take  the  oath  of  office  required  by  law, 
and  give  a  bond  to  the  city,  conditioned  for  the  faithful  per- 
formance of  his  duties,  with  security,  to  the  approval  of  the 
common  council,  in  the  sum  of  one  thousand  ($1,000)  dollars. 

[State  sealer  to  furnish  copies  of  standards.]  State  sealer  of 
weights  and  measures,  as  provided  in  section  145,  Revised  Stat- 
utes of  Ohio,  shall  furnish,  for  the  use  of  such  sealer,  all  nec- 
essary and  approved  standard  measures,  and  also  all  standard 
weights  required,  under  fifty  pounds,  with  necessary  subdi- 
visions. 

[Sealer  to  furnish  standard  weights.]  Such  sealer  shall  fur- 
nish,, at  his  own  expense,  not  less  than  two  thousand  pounds  of 
standard  weights  to  be  used  in  testing  wagon  and  other  large 
scales,  and  shall  use  not  less  than  one  thousand  pounds  in  test- 
ing wagon  scales,  and  not  less  than  two  thousand  pounds  in 
testing  railroad  track  scales. 

[Duty  of  sealer.]  It  shall  be  the  duty  of  the  sealer  to  faith- 
fully devote  his  time  to  the  performance  of  the  duties  of  his 
office,  and  to  test  all  weights,  measures,  scales,  beams,  steel- 
yards, and  other  machinery  used  for  weighing  or  measuring, 
within  such  city,  at  least  once  in  every  year;  and,  upon  being 
notified,  in  writing,  by  any  person  that  any  weight,  measure, 
scale,  beam,  steelyards,  or  other  machinery  for  weighing  or 
measuring  any  article  intended  to  be  purchased  or  sold  in 
such  city,  is  inaccurate,  or  believed  to  be  so,  or  not  according 
to  the  standard,  to  at  once  make  an  examination  of  the  same; 

[Sealer  has  police  powers.]  And  in  the  exercise  of  such  du- 
ties he  shall  have  full  police  powers  to  enforce  any  and  all  rea- 


552  THE    OHIO    MUNICIPAL    CODE. 

sonable  measures  for  testing  such  weights  and  measures,  and 
also  in  ascertaining  whether  false  or  short  weights  and  meas- 
ures are  being  given  in  any  sales  or  transfers  of  articles  of 
merchandise  taking  place  within  such  city ; 

[Approval  of  weights  or  measures.]  And  after  he  shall  have 
found  such  weights  and  measures  to  be  correct  and  according  to 
the  standard  prescribed  by  law,  he  shall  seal  or  mark  the  same 
with  a  stamp,  or  by  pasting  a  card  thereon,  as  he  may  deem 
most  proper,  with  the  letters  "  C.  S.,"  the  initials  for  "  City 
Sealer/'  which  said  cards  and  seals  shall  be  provided  by  the 
city. 

[Confiscation  and  destruction  of  unlawful  weights  and  measures; 
use  of  weights,  etc.,  not  standard,  prohibited.]  If  such  sealer 
shall  find,  upon  examination  of  any  weights  or  measures  used 
by  any  person,  that  the  same  do  not  conform  to  the  standard 
prescribed  by  law,  he  shall  have  authority  to  confiscate  such 
weights  or  measures  and  destroy  the  same.  No  person  shall 
use  weights,  measures,  scales,  beams,  steelyards,  or  other  ma- 
chinery for  weighing  or  measuring  any  article  intended  to  be 
purchased  or  sold  in  such  city,  or  any  weight  or  measurement 
in  which  other  persons  or  the  public  are  interested,  which  do 
not  conform  to  the  standards  prescribed  by  law. 

[False  or  short  weight  or  measure.]  No  person  shall  give 
or  direct  or  permit  any  person  in  his  employ  to  give  any  false 
or  short  weight  or  measure  in  the  sale  or  transfer  of  any  prop- 
erty in  such  city,  whereby  any  person  may  be  defrauded  or 
injured. 

[Altering  weight,  measure,  etc.]  No  person  shall  alter  or 
permit  to  be  altered,  or  knowingly  use  or  permit  to  be  used, 
after  the  same  shall  have  been  altered,  any  weight,  measure, 
scale,  beam,  steelyards,  or  other  instrument  for  weighing  or 
measuring,  after  the  same  shall  have  been  tested,  marked  and 
sealed,  which,  by  reason  of  such  alteration,  shall  not  conform 
to  the  legal  standard. 

[Persons  required  to  exhibit  to  sealer  weights,  etc.,  for  exami- 
nation, testing  and  marking.]  It  shall  be  the  duty  of  every 
person  or  persons,  when  called  upon,  to  exhibit  to  such  sealer 
all  weights,  measures,  scales,  beams,  steelyards,  or  other  ma- 
chinery by  them  used  or  intended  to  be  used  for  weighing  or 
measuring  any  article  or  commodity,  bought  or  sold,  and  per- 
mit said  sealer  to  examine,  test,  and  mark  the  same. 

[Penalty.]  Any  person  violating  any  of  the  provisions  of 
this  act,  or  any  section  thereof,  shall,  upon  conviction  thereof 
in  any  court  having  jurisdiction  thereof,  be  fined  not  less  than 


OFFICERS.  553 

five  ($5.00)  dollars  nor  more  than  twenty-five  ($25.00)  dol- 
lars for  the  first  offense,  or  imprisoned  not  more  than  thirty 
days,  or  both ;  and,  upon  conviction  for  any  subsequent  offense, 
shall  be  fined  not  less  than  twenty-five  ($25.00)  dollars  nor 
more  than  one  hundred  ($100.00)  dollars,  or  imprisoned  not 
more  than  sixty  days,  or  both,  and  shall  stand  committed  until 
such  fine  and  costs  are  paid.  [93  v.  201 ;  91  v.  302 ;  58  v.  78, 
§  17;  S.  &S.  925.] 

Sec.  145  R.  S.  [State  sealer  to  furnish  copies  of  standards.] 
The  state  sealer  shall  furnish  like  copies  of  the  original  stand- 
ards to  the  sealer  of  any  city  or  village  upon  application  there- 
for, and  payment  of  the  costs  thereof,  by  such  city  or  village.1 
[58  v.  78,  §  9 ;  S.  &  S.  924.] 

( 1 )   Appointment  of  sealers  or  power  to  prescribe  duties  of  such  of- 

inspectors  of  weights  and  measures  ficers.     Huddleson  v.  Ruffin,  6  O.  S. 

by  municipalities  was  held  to  be  au-  604. 

thorized  by  a  section  such  as  this;  See  paragraph    12   of   §    7    of  the 

and  incident  to  the  creation  of  the  Coue,  page  52. 
office,  the  municipalities  would  have 


Fire  and  Police  Officers. 

Sec.  409 — 51  R.  S.  [Duties  of  marshal  in  connection  with  oth- 
er officers  to  investigate  fires.]  The  state  fire  marshal  and  the 
chief  of  the  fire  department  of  every  city  or  village  in  which  a 
fire  department  is  established,  and  the  mayor  of  every  incor- 
porated village  or  town  in  which  no  fire  department  exists,  and 
the  township  clerk  of  every  organized  township  without  the 
limits  of  any  organized  village  or  city,  shall  investigate  the 
cause,  origin  and  circumstances  of  every  fire  occurring  in  such 
city,  village,  town  or  township  by  which  property  has  been  de- 
stroyed or  damaged,  and  shall  especially  make  investigation  as 
to  whether  such  fire  was  the  result  of  carelessness  or  design. 
Such  investigation  shall  be  begun  within  two  days,  not  includ- 
ing the  Sunday  of  the  occurrence  of  such  fire,  "and  the  fire 
marshal  shall  have  the  right  to  supervise  and  direct  such  in- 
vestigation whenever  he  deems  it  expedient  or  necessary. 

[Notification  of  fire  to  marshal.]  The  officer  making  investi- 
gation of  fires  occurring  in  cities,  villages,  towns  or  townships 
shall  forthwith  notify  said  fire  marshal,  and  shall  within  one 
week  of  the  occurrence  of  the  fire,  furnish  to  the  said  fire  mar- 
shal a  written  statement  of  all  the  facts  relating  to  the  cause 
and  origin  of  the  fire,  and  such  other  information  as  may  be 
called  for  by  the  blanks  provided  by  the  said  fire  marshal. 
*     *     *      [95  v.  472,  94  v.  387.]. 


654  THE  OHIO  MUNICIPAL  CODE. 

Sec.  409 — 54  R.  S.  [Right  of  marshal  and  other  officers  upon 
complaint  to  enter  buildings  for  purpose  of  investigation.] 

The  state  fire  marshal,  his  deputies  and  assistants,  the  chief 
of  fire  department  of  all  villages  and  cities  where  a  fire  depart- 
ment is  established,  and  the  mayor  of  cities  or  villages  where 
no  fire  department  exists,  and  the  clerks  of  each  township  in 
the  territory  without  the  limits  of  an  organized  city  or  village, 
upon  complaint  of  any  person  having  an  interest  in  any  build- 
ing or  property  adjacent,  and  without  any  complaint,  shall 
have  a  right  at  all  reasonable  hours,  for  the  purpose  of  exami- 
nation, to  enter  into  and  upon  all  buildings  and  premises  within 
their  jurisdiction. 

[May  order  repair  of  building  or  removal  of  inflammable  or 
explosive  material.]  Whenever  any  of  said  officers  shall  find 
any  building,  or  other  structure,  which,  for'  want  of  proper 
repair,  or  by  reason  of  age  and  dilapidated  condition,  or  for 
any  cause,  is  especially  liable  to  fire,  and  which  is  so  situated 
as  to  endanger  other  buildings  or  property,  and  whenever  any 
of  such  officers  shall  find  in  any  building,  or  upon  any  premises, 
combustible  or  explosive  material,  or  inflammable  conditions, 
dangerous  to  the  safety  of  said  buildings  or  premises,  they 
shall  order  the  same  to  be  removed  or  remedied,  and  such  order 
shall  be  forthwith  complied  with  by  the  owner  or  occupant 
of  said  building  or  premises; 

[Right  of  aggrieved  person  to  appeal  to  state  fire  marshal.] 
provided,  however,  that  if  the  said  occupant  or  owner  shall 
deem  himself  aggrieved  by  such  order,  he  may,  within  twenty- 
four  hours  appeal  to  the  state  fire  marshal,  and  the  cause  of 
the  complaint  shall  be  at  once  investigated  by  the  direction  of 
the  latter,  and  unless  by  his  authority  the  order  is  revoked, 
such  order  shall  remain  in  force  and  be  forthwith  complied  with 
by  said  owner  or  occupant. 

[Penalty  for  non-compliance.]  Any  owner  or  occupant  of 
buildings  or  premises  failing  to  comply  with  the  orders  of  the 
authorities,  above  specified,  shall  be  punished  by  a  fine  of  not 
less  than  ten  dollars  ($10.00)  nar  more  than  fifty  dollars 
($50.00)  for  each  day's  neglect.     [95  v.  473;  93  v.  388.] 

Sec.  409—55.    R.  S.     [Penalty  for  neglect  of  official  duty.] 

Any  officer  referred  to  in  section  409 — 51  herein,  who  neglects 
to  comply  with  any  of  (the)  requirements  of  this  act  shall  be 
punished  by  a  fine  of  not  less  than  twenty-five  dollars,  nor 
more  than  two  hundred  dollars.     [95  v.  474;  93  v.  388.] 

Sec.  7129  R.  S.  [Who  may  arrest.]  A  sheriff,  deputy  sheriff, 
constable,  marshal  or  deputy  marshal,  watchman,  or  police 
officer,  shall  arrest  and  detain  any  person  found  violating  any 
law  of  this  state,  or  any  legal  ordinance  of  a  city  or  village, 
until  a  legal  warrant  can  be  obtained.     [66  v.  291,  §  21.] 

Sec.  1315  R.  S.  [No  witness  fees  to  policeman  in  cases  speci- 
fied.] No  watchman  or  other  police  officer  is  entitled  to  witness 
fees  in  any  cause  prosecuted  under  any  criminal  law  of  the 


OFFICERS.  555 

state,  or  any  ordinance  of  a  city  of  the  first  or  second  class, 
before  any  police  judge  or  mayor  of  any  such  city,  justices  of 
the  peace,  or  other  officer  having  jurisdiction  in  such  causes. 
[56  v.  22,  §1;S.  &C.  647.] 

Sec,  6858—1  R.  S.  [Disposition  of  stolen  or  other  property 
recovered  by  police.]  All  stolen  or  other  property  recovered 
by  members  of  the  police  force  shall  be  deposited  and  kept  in 
a  place  designated  by  the  mayor;  every  such  article  or  prop- 
erty shall  be  entered  in  a  book,  kept  for  that  purpose,  to- 
gether with  the  name  of  the  owner,  if  ascertained,  and  the 
name  of  the  place  where  found,  and  of  the  person  from 
whom  taken  with  general  circumstances,  and  the  date  of  its 
receipt  and  the  name  of  the  officer  receiving  the  same;  and 
an  inventory  of  all  money,  or  other  property,  shall  be  given 
to  the  party  from  whom  the  same  was  taken,  and  in  case  the 
same  is  not,  within  thirty  days  after  such  arrest  and  seizure, 
claimed  by  some  person,  it  shall  unless  otherwise  ordered  by 
the  board,  be  delivered  to  the  person  from  whom  the  same 
was  taken,  and  to  no  other  person,  either  attorney,  agent, 
factor,  or  clerk  except  by  special  order  of  the  mayor;  and  in 
case  such  money  or  property  is,  within  thirty  days  claimed 
by  any  other  person  it  shall  be  retained  by  such  custodian 
until  after  the  discharge  or  conviction  of  the  person  from 
whom  the  same  was  taken  and  so  long  as  it  may  be  required 
as  evidence  in  any  case  in  court;  and  if  such  claimant  estab- 
lish, to  the  satisfaction  of  the  police  judge,  that  he  is  the 
rightful  owner,  the  same  shall  be  restored  to  him,  otherwise, 
it  shall  be  returned  to  the  accused  person,  personally,  and  not 
to  any  attorney,  agent,  factor,  or  clerk  of  such  accused 
person,  except  upon  special  order  of  the  mayor  after  all  liens 
and  claims  in  favor  of  the  city,  against  the  same  shall  have 
been  discharged  and  satisfied.     [1906,  March  17,  98  v.  60.] 

Sec.  6858—2  R.  S.  [Penalty  against  officer  for  neglecting 
or   refusing    to    dispose    of   property    as    herein    provided.] 

In  case  of  the  neglect  or  refusal  of  any  officer  or  patrol- 
man to  deposit  the^  property  taken  or  found  on  the 
possession  of  any  person  arrested,  as  provided  in  the  pre- 
ceding section,  he  shall  be  deemed  guilty  of  a  misdemeanor, 
and  subject  to  indictment,  or  information,  and  be  fined  in  a 
sum  not  exceeding  three  thousand  dollars,  and  in  no  case  less 
than  twice  the  value  of  the  property,  or  be  imprisoned  in  the 
county  jail  not  exceeding  one  month  or  both;  and  the  sentence 
of  the  court  in  all  such  cases  shall  operate  to  vacate  the  office 
of  the  person  so  convicted.     [1906,  March  17,  98  v.  60.] 

Sec.  6858 — 3  R.  S.  [Sale  of  unclaimed  goods;  disposal  of 
proceeds.]  All  goods  unclaimed  for  the  period  of  one  year 
shall  be  sold  by  the  superintendent  of  police  at  public  auction, 
after  giving  due  notice  thereof,  by  advertisement  published 
three  times  in  a  newspaper  of  general  circulation  in  such 
icounty. 

The  proceeds  realized  from  such  sale  at  public  auction  shall 


556  THE    OHIO    MUNICIPAL    CODE. 

be  paid  over  to  the  treasurer  of  the  police  relief  fund  to  be 
placed  to  the  credit  of  said  fund,  in  all  municipalities  where 
there  is  such  a  fund  and  trustees  and  officers  thereof ;  provided, 
however,  that  in  municipalities  where  there  is  no  police  relief 
fund  and  trustees  and  officials  thereof,  said  proceeds  of  said 
sales  at  public  auction  shall  be  turned  over  to  the  treasurer  of 
such  municipality,  to  be  credited  to  the  general  fund  of  such 
municipality.     [1906,  March  17,  98  v.  60.] 

3.    ELECTION  AND  KEMOVAL  OF  OFFICERS.1 

Sec.  1725  R.  S.  [Designation  of  election.]  The  council  of 
every  municipal  corporation  shall  designate  the  place  or  places 
for  holding  the  regular  elections;  and  in  all  corporations  di- 
vided into  wards,  there  shall  be  a  place  or  places  in  each  ward 
designated  for  holding  elections.     [67  v.  70,  §  72.] 

(1)    Sections   given   here   formed  ipalities   that  have   failed  to  elect 

part  of  Chap.  3,  Div.  4,  Title  XII  officers,  were  repealed  by  the  Hypes 

R.   S.     No  sections  of  this  chapter  Election  Law  (97  v.  238). 

are    repealed    by    the    Code,    except  Code  provisions  on  election,  ap- 

§  1724  R.  S.    But  §  1723  R.  S.,  pro-  pointment   and   removal   of   officers, 

viding  time  of  annual   elections   in  see  §§222,  223,  225,  226,  228,  230 

municipalities  and  §  1736 — 1  R.  S.,  of  the  Code  in  Part  I. 
providing    for    election    in    munic- 

Sec.  1726  R.  S.  [Mayor's  election  proclamation.]  The  mayor, 
previous  to  any  election  for  a  municipal  officer  or  officers,  shall 
issue  a  proclamation  to  the  electors  of  the  corporation,  or  of 
the  respective  wards  or  districts,  as  the  case  may  require,  set- 
ting forth  the  time  and  places  of  election,  and  the  officers  to  be 
chosen,  and  cause  such  proclamation  to  be  published  in  some 
newspaper  printed  in  the  corporation,  at  least  ten  days  previous 
to  the  election,  or,  if  no  such  newspaper  is  published  in  the 
corporation,  such  notice  may  be- given  by  posters.  [66  v.  161, 
§73.] 

FORM  OF  MAYOR'S  ELECTION  PROCLAMATION 

Election  Notice.  $ 

The  qualified  electors  of  the  city  [or  village]  of , 

State  of  Ohio,  are  hereby  notified  that  an  election  will  be  held  at  the 

usual  voting  places  in  said  city  [or  village]   on ,  the 

day  of ,  19 ,  between  the  hours  of 

A.  M.  and    P.  M.,  at  which  election  the  following  officers 

will  be  chosen:    (here  insert  names  of  officers  to  be  elected.) 

Given  under  my  hand  and  the  corporate  seal  of  the  city  [or  village] 
of ,  this  day  of ,  19 


Mayor. 

Sec.  1727  R.  S.  [Who  are  electors.]  A  person  who,  at  the 
time  of  an  election  for  municipal  officers,  is  an  elector  for 
county  officers,  and  resides  in  the  ward,  or  corporation,  if  there 
be  no  wards,  in  which  he  offers  to  vote,  is  a  qualified  elector; 
and  the  elections  shall  be  held  and  conducted  in  all  respects,  in 
the  manner  prescribed  by  law  in  case  of  township  elections. 
[66  v.  162,  §  74.] 


OFFICERS.  557 

Sec.  1728  R.  S.  [Election  returns;  when  opened]  Returns  of 
municipal  elections  in  corporations  which  are  divided-  into 
election  districts  or  wards,  shall  be  made  to  the  clerk  or  auditor 
of  the  corporation,  and  be  opened  by  him  within  the  time  pre- 
scribed for  the  opening  of  the  returns  of  county  elections. 
[1904,  April  25,  97  v.  190;  66  v.  162,  §  75.] 

Sec.  1729  R.  S.  [Abstracts  of  votes.]  The  clerk  or  auditor, 
or  in  his  absence  or  disability,  some  person  to  be  selected  by 
the  council,  shall  call  to  his  assistance  the  mayor,  and  in  his 
presence,  make  an  abstract  and  ascertain  the  candidates  elec- 
ted, as  required  by  law  with  respect  to  county  officers ;  and  he 
shall,  in  like  manner,  make  a  certificate  as  to  each  candidate  so 
elected,  and  cause  the  same  to  be  delivered  to  him,  or  left  at 
his  usual  place  of  abode;  provided,  that  if  there  is  no  mayor, 
or  the  mayor  is  absent  or  disabled,  or  a  candidate  at  such  elec- 
tion, the  clerk  shall  call  to  his  assistance  a  justice  of  the  peace 
of  the  county.     [1904,  April  25,  97  v.  190;  66  v.  162,  §  76.] 

FORM  OF  CERTIFICATE  OF  ELECTION. 

I, ,  clerk  of  the  village  of , 

State  of  Ohio,  do  hereby  certify  that  at  the  election  held  in  said  village 

on  ,  19 ,  was  duly  elected 

of  the  said  village  of 

Witness  my  hand  and  official  seal,  this day  of ,  19 


Clerk  of  the  village  of. 


Sec.  1731  E.  S.  [Tie  vote;  decision  by  lot.]  If  the  result  can 
not  be  determined  from  the  votes  cast,  for  the  reason  that 
more  than  the  number  of  persons  to  be  elected  have  an  equal 
number  of  votes  for  the  same  office,  then  the  officers  whose  duty 
it  is  to  ascertain  the  persons  elected,  shall  determine  by  lot 
which  of  such  persons  shall  be  declared  elected;  and  the  elec- 
tion of  any  municipal  officer,  except  a  member  of  the  council, 
may  be  contested  1  in  the  manner  provided  by  law  for  con- 
testing the  election  of  justices  of  the  peace,  except  in  cities  of 
the  first  grade  of  the  first  class,  such  election  may  be  contested 
only  in  the  manner  provided  for  contesting  the  election  of 
county  officers.      [67  v.  70,  §  78.] 

( 1 )    Contested  election. —  As  to  As  to  contesting  mayor's  election 

powers  and  duty  of  jury  in  contest-  in  village,  see  State  ex  rel.  v.  Simp- 

ed  election  case,  see  State  ex  rel.  v.  son,  5  B.  422. 
Wright,  56  O.  S.  540. 

Sec.  1732  R.  S.  [Charge  of  malfeasance,  etc.,  in  office;  citation 
by  probate  judge.]  On  complaint,  under  oath,  filed  with  the 
probate  judge  of  the  county  in  which  the  corporation,  or  the 
larger  part  thereof,  is  situated,  by  any  elector  of  the  corpora- 


558  THE    OHIO    MUNICIPAL    CODE. 

tion,  signed  and  approved  by  four  other  electors  thereof,  charg- 
ing that  any  member  of  the  council  or  alderman  has  received, 
directly  or  indirectly,  any  compensation  for  his  services  as 
councilman,  alderman,  committeeman,  or  otherwise,  contrary, 
to  the  provisions  of  section  sixteen  hundred  and  eighty-three  1 
or  that  any  alderman,  member  of  the  council,  or  any  officer 
of  the  corporation,  is  or  has  been  interested,  directly  or  indi- 
rectly, in  the  profits  of  any  contract,  job,  work,  or  services,  or 
is  or  has  been  acting  as  commissioner,  architect,  superintend- 
ent, or  engineer  in  any  work  undertaken  or  prosecuted  by  the 
corporation  contrary  to  the  provisions  of  section  sixty-nine 
hundred  and  seventy-six,2  or  that  any  alderman,  member  of 
council,  or  any  officer  of  the  corporation  has  been  guilty  of  mis- 
feasance or  malfeasance  in  office,  such  probate  judge  shall 
forthwith  issue  a  citation  to  such  party,  charged  in  the  com- 
plaint, for  his  appearance  before  him  within  ten  days  from  the 
filing  of  such  complaint,  and  also  furnish  the  accused  and  city 
solicitor  with  a  copy  thereof:  provided,  that  the  probate  judge 
shall  require  the  party  complaining  to  furnish  sufficient  security 
for  costs  before  acting  upon  such  complaint3      [68  v.  113,  §  1.] 

(1)  Section  1683  R.  S.  is  repealed  (3)  Removals.— See  §§  118, 
by  the  Code.  See  §§  126  and  194  121,  129,  145,  225  and  226  of  the 
of  the  Code.  Code.     See  notes  to  §§  225  and  226 

(2)  See  this  section  supra,  p.  538.  of  the  Code. 

Sec.  1733  R.  S.  [Proceedings  thereon.]  On  the  day  fixed  by 
such  judge  for  the  return  of  the  citation,  it  shall  be  the  duty 
of  the  solicitor  to  appear  on  behalf  of  the  complainant  to  con- 
duct the  prosecution,  and  the  accused  may  also  appear  by  coun- 
sel, and  a  time  shall  be  set  for  hearing  the  case,  which  time 
shall  not  be  more  than  ten  days  after  such  return;  and  if  a 
jury  is  demanded  by  either  party,  the  probate  judge  shall  di- 
rect the  summoning  of  twelve  men,  in  the  manner  provided  in 
the  seventh  division  of  this  title:  provided,  that  in  villages 
and  cities  in  which  there  is  no  office  of  solicitor,  or  where  the 
solicitor  is  accused  of  any  misfeasance  or  malfeasance  in  his. 
office,  it  is  hereby  made  the  duty  of  the  prosecuting  attorney 
of  the  county  to  appear  on  behalf  of  such  complainant  to  con- 
duct the  prosecution.      [68  v.  113,  §  2.] 

Sec.  1734  R.  S.  [Challenge  of  jurors.]  On  the  day  fixed  for 
'the  trial,  if  a  jury  is  impaneled,  either  party  may,  in  addition 
to  the  peremptory  challenges  allowed  by  law  in  other  cases, 
object,  for  good  cause,  to  any  juryman  summoned;  and  any 
vacancies  occurring  for  any  cause,  may  be  filled  by  the  probate 
judge  from  the  bystanders,  until  the  panel  is  full,  unless  the 


OFFICERS.  559 

party  charged,  or  his  counsel,  demand  a  special  venire  to  fill 
such  vacancy.     [68  v.  113,  §  3.] 

Sec.  1735  R.S.  [The  trial.]  On  the  day  designated  for  the 
trial,  it  shall  take  placo,  unless  continued,  on  affidavit  for  good 
cause,  to  another  fixed  time,  not  exceeding  ten  days ;  and  on  the 
trial  it  shall  be  the  duty  of  the  solicitor  to  appear  for  the 
prosecution,  examine  witnesses  designated  by  the  complainant, 
and  such  others  as  he  may  discover,  and  either  party  may 
have  process  from  the  probate  judge  to  compel  the  attendance 
of  witnesses.      [68  v.  114,  §  4.] 

Sec.  1736 R.S.     [Removal  of  officer,  if  found  guilty;  costs.] 

If  the  charges  in  the  complaint  are  sustained  on  the  trial  by 
the  verdict  of  the  jury,  or  the  decision  of  the  probate  judge 
when  there  is  no  jury,  such  judge  shall  enter  the  charges  and 
findings  thereon  upon  the  record  of  the  court,  and  make  an  order 
removing  such  officer  from  office  and  forthwith  transmit  a  cer- 
tified copy  of  the  same  to  the  presiding  officer  of  the  council, 
whereupon  the  vacancy  shall  be  filled  as  provided  by  law ;  and 
the  costs  and  expenses  of  the  trial  shall  be  charged  upon  the 
party  filing  the  complaint,  the  accused,  or  the  municipal  cor- 
poration, or  apportioned  among  them,  as  the  judge  may  see 
fit  to  direct,  and  shall  be  collected  as  in  other  cases :  provided, 
no  costs  or  expenses  shall  be  charged  to  the  accused,  if  upon 
such  trial  he  is  acquitted;  and  provided  further,  that  if  pro- 
ceedings in  error  are  instituted  by  the  officer  complained  of, 
to  reverse  or  vacate  the  order  of  the  probate  court,  such  offi- 
cer shall  not  exercise  the  functions  of  his  office  until  such  order 
is  finally  reversed  or  vacated.      [68  v.  114,  §  5.] 


560  THE    OHIO    MUNICIPAL    CODE. 

4.     UNIFORM  ACCOUNTING  BY  OFFICERS. 

An  act  to  create  a  bureau  of  inspection  and  supervision  of  public 
offices,  and  to  establish  a  uniform  system  of  public  accounting,  au- 
diting and  reporting,  under  the  administration  of  the  auditor  of 
State. 

[Sec.  1.]  [Bureau  of  inspection  and  supervision  of  public  of- 
fices. Chief  inspector,  etc.;  deputies  and  clerk;  appointment,  sal- 
ary and  expenses.]  There  is  hereby  established  in  the  depart- 
ment of  the  auditor  of  state,  a  bureau  to  be  known  as  the  bureau 
of  inspection  and  supervision  of  public  offices;  the  principal 
officer  of  said  bureau  shall  be  known  as  the  chief  inspector  and 
supervisor  of  public  offices;  the  auditor  of  state  shall  be,  ex 
officio,  chief  inspector  and  supervisor  of  public  offices,  and  as 
such  chief  inspector  and  supervisor,  shall  appoint  not  exceeding 
three  deputies,  no  more  than  two  of  whom  shall  be  of  the  same 
political  party,  who  shall  each  receive  a  salary  not  exceeding 
two  thousand  dollars  per  annum,  and  a  clerk  who  shall  receive  a 
salary  not  exceeding  fifteen  hundred  dollars  per  annum,  and 
in  addition  thereto  an  allowance  for  all  necessary  traveling 
and  hotel  expenses  while  absent  from  their  places  of  residence 
in  the  discharge  of  their  official  duties.  [May  10,  1902,  95 
v.  511.] 

[Sec.  2.]  [Duty  of  auditor  of  state.]  The  auditor  of  state 
through  said  bureau  shall  formulate,  prescribe  and  install  a 
system  of  accounting  and  reporting,  in  conformity  with  the 
provisions  of  this  act,  that  shall  be  uniform  for  every  public 
office  and  every  public .  account  of  the  same  class,  and  which 
*>hall  exhibit  true  accounts  and  detailed  statements  of  funds 
collected,  received  and  expended  for  account  of  the  public  for 
any  purpose  whatever,  and  by  all  public  officers,  employes  or 
other  persons,  such  accounts  to  show  the  receipt,  use  and  dis- 
position of  all  public  property,  and  the  income,  if  any,  de- 
rived therefrom,  and  of  all  sources  of  public  income  and 
the  amounts  due  and  received  from  each  source,  all  receipts, 
vouchers  and  other  documents  kept,  or  that  may  be  required 
to  be  kept,  necessary  to  isolate  and  prove  the  validity  of  ev- 
ery transaction,  and  all  statements  and  reports,  made  or  re- 
quired to  be  made,  for  the  internal  administration  of  the 
office  to  which  they  pertain,  and  all  reports  published,  or  that 
may  be  required  to  be  published,  for  the  information  of  the 
people,  regarding  any  and  all  details  of  the  financial  adminis- 
tration of  public  affairs.      [May  10,  1902,  95  v.  512.] 

[Sec.  3.]  [Separate  accounts.]  Separate  accounts  shall  be 
kept  for  every  appropriation  or  fund  made  by  a  taxing  body, 


,         OFFICERS.  561 

showing  date  and  manner  of  each  payment  made  out  of  the 
funds  provided  by  such  appropriation,  the  name,  address  and 
vocation  of  each  person,  organization,  corporation  or  associa- 
tion, to  whom  paid,  and  for  what  purpose  paid.  Separate  ac- 
counts shall  be  kept  for  each  department,  public  improvement, 
undertaking,  institution  and  public  service  industry  under  the 
jurisdiction  of  every  taxing  body,  and  of  the  state,  and  all 
service  rendered  by,  or  property  transferred  from  one  depart- 
ment, public  improvement,  undertaking,  institution  or  public 
service  industry  to  another,  shall  be  paid  for  at  its  true  and  full 
value  by  the  department,  public  improvement,  undertaking,  in- 
stitution or  public  service  industry  receiving  the  same,  and  no 
department,  public  improvement,  undertaking,  institution  or 
public  service  industry  shall  benefit  in  any  financial  manner 
whatever  by  an  appropriation  or  fund  made  for  the  support  of 
another  department,  public  improvement,  undertaking,  insti- 
tution or  public  service  industry.  All  unexpended  balances 
or  appropriations  shall  be  transferred  to  the  fund  from  which, 
appropriated  whenever  the  account  with  an  appropriation  is 
closed.      [1904,  April  23,  97  v.  272 ;  95  v.  512:] 

[Sec.  4.]  [Public  service  industries.]  Separate  accounts  shall 
be  kept  for  every  public  service  industry  which  shall  show  the 
true  and  entire  cost  of  the  ownership  and  operation  thereof, 
the  amount  collected  annually  by  general  or  special  taxation 
for  services  rendered  to  the  public  and  the  amount  and  char- 
acter of  the  service  rendered  therefor,  and  the  amount  collected 
annually  from  private  users,  if  any,  for  service  rendered  to  them, 
and  the  amount  and  character  of  the  service  rendered  therefor. 
[May  10,  1902,  95  v.  512.] 

[Sec.  5.]  [Comparative  statistics.]  The  auditor  of  state 
through  said  bureau  shall  require  from  every  taxing  district 
and  public  institution  financial  reports  covering  the  full  period 
of  each  fiscal  year,  in  accordance  with  the  forms  and  methods 
prescribed  by  him,  which  shall  be  uniform  for  all  accounts  of 
the  same  class,  which  said  reports  shall  be  prepared,  certified 
and  filed  with  said  bureau  within  thirty  days  after  the  close  of 
each  fiscal  year  by  the  auditing  department  of  said  taxing  dis- 
trict or  public  institution.  Such  reports  shall  contain  an  accu- 
rate statement  in  summarized  form,  of  all  collections  made  by 
or  receipts  received  by  the  officers  from  all  sources,  all  accounts 
due  the  public  treasury  but  not  collected,  and  of  all  expendi- 
tures for  every  purpose  and  by  what  authority  authorized,  and 
also: 

(a)     A  statement  of  all  costs  of  ownership  and  operation 


562 


THE    OHIO    MUNICIPAL    CODE. 


and  of  all  income  of  each  and  every  public  service  industry 
owned  and  operated  by  a  municipality. 

(b)  A  statement  of  the  entire  public  debt  of  every  taxing 
district  to  which  power  has  been  delegated  by  the  state  to  create 
a  public  debt,  showing  the  purpose  for  which  each  item  of  the 
debt  was  created,  the  provisions  made  for  the  payment  of  the 
debt,  together  with  such  other  information  as  may  be  required 
by  the  auditor  of  state.  Such  reports  shall  be  certified  as  to 
their  correctness  by  said  auditor  of  state,  his  deputies,  or  by  a 
state  examiner,  or  other  person  legally  authorized  to  make  such 
certificate. 

Their  substance  shall  be  published  in  an  annual  volume  of 
comparative  statistics  that  shall  be  issued  for  each  class  of 
accounts  at  the  expense  of  the  state  as  a  public  document,  and 
shall  be  submitted  by  the  auditor  of  state  to  the  governor  for 
transmittal  to  the  legislature  at  the  next  regular  session,  or  at 
a  special  session  when  required.  [1904,  April  23,  97  v.  272 ; 
95  v.  513.] 

[Sec.  6.]  [Duty  of  public  officer.]  It  shall  be  the  duty  of 
every  public  officer  and  employe  to  keep  all  accounts  of  his 
office  in  the  form  prescribed  and  to  make  all  reports  required 
by  the  auditor  of  state.  Refusal  or  neglect  to  perform  these 
duties  shall  be  deemed  an  offense  against  the  efficiency  of  public 
administration  and  the  welfare  of  the  people,  and  shall  be  pun- 
ished by  removal  from  office,  after  trial  and  conviction  by  a 
court  of  competent  jurisdiction.  Every  public  officer  and  em- 
ploye whose  duty  it  is  to  collect  or  receive  payments  due  the 
public  shall  deposit  all  public  moneys  collected  or  received 
by  him  with  the  treasurer  of  the  taxing  district  once  every 
twenty-four  consecutive  hours.  In  case  a  public  officer  or 
employe  collects  or  received  funds  for  the  account  of  a  taxing 
district  of  which  he  is  not  an  officer  or  employe,  he  shall  during 
the  Saturday  of  each  week,  pay  to  the  proper  officer  of  the 
taxing  district  for  account  of  which  the  collection  was  made 
or  payment  received,  the  full  amount  collected  or  received 
during  the  current  week  for  the  account  of  such  taxing  district. 
[95  v.  514;  97  v.  273.] 

[Sec.  7.]  [State  examiners;  appointment,  salary,  etc.]  After 
the  bureau  of  inspection  and  supervision  shall  have  formulated 
and  installed  the  system  of  uniform  accounting  in  any  or  all 
classes  of  public  offices,  the  auditor  of  state  is  hereby  empowered 
to  appoint  additional  assistants  as  required  to  administer  the 
provisions  of  this  act ;  said  additional  assistants  shall  be  known 
as  state  examiners  who  shall  each  be  paid  five  dollars  per  day 


OFFICERS.  563 

for  the  time  necessary  to  the  performance  of  his  duties,  and 
in  addition  thereto  his  necessary  expenses  incurred,  [May  10, 
1902,  95  v.  514.] 

[Sec.  8.]  [Powers  of  auditor  of  state.]  The  auditor  of  state, 
a  deputy  inspector  and  surveyor,  and  every  state  examiner  shall 
have  power  by  himself  or  by  any  person  legally  appointed  to 
perform  the  service,  to  examine  into  all  financial  affairs  of 
every  public  office  and  officer,  and  shall  make  such  examina- 
tion at  least  once  a  year.  On  every  such  examination  inquiry 
shall  be  made  as  to  the  financial  conditions  and  resources  of  the 
taxing  district;  whether  the  constitution  and  statutory  laws 
of  the  state,  the  ordinances  and  orders  of  the  taxing  district 
and  the  requirements  of  the  bureau  of  inspection  and  super- 
vision of  public  offices  have  been  property  complied  with; 
and  into  the  methods  and  accuracy  of  the  accounts  and  reports. 
The  auditor  of  state,  his  deputies,  every  state  examiner  and 
every  person  legally  appointed  to  perform  such  service,  shall 
have  and  may  exercise  all  the  authority  to  issue  subpoena  and 
compulsory  process  and  to  direct  the  service  thereof  by  any 
constable  or  sheriff,  to  compel  the  attendance  of  witnesses  and 
the  production  of  books  and  papers  before  him  at  any  desig- 
nated time  and  place,  to  administer  oaths  and, to  punish  for 
-disobedience  of  subpoena,  or  refusal  to  be  sworn  or  to  answer 
as  a  witness,  or  to  produce  books  and  papers,  which  is  con- 
ferred by  law  upon  courts  or  officers  authorized  to  take  depo- 
sitions. Wilful  false  swearings  in  such  examinations  shall 
be  perjury,  and  shall  be  punishable  as  such.  A  report  of  such 
examination  shall  be  made  in  duplicate,  one  copy  to  be  filed 
in  the  office  of  the  auditor  of  state  and  one  in  the  auditing 
department  of  the  taxing  district  reported  upon.  If  any  such 
examination  discloses  malfeasance,  misfeasance  or  non-feasance 
in  office  on  the  part  of  any  public  officer  or  employe,  an  addi- 
tional copy  of  such  report  shall  be  made  and  forwarded  to  the 
proper  legal  authority  of  the  taxing  district  for  such  legal 
action  as  is  proper  in  the  premises.  Refusal,  neglect  or  failure 
on  the  part  of  the  proper  legal  authority  of  the  taxing  district 
to  take  prompt  and  efficient  legal  action  by  civil  process  to 
carry  into  effect  the  findings  of  any  such  examination  or  to 
prosecute  the  same  to  a  final  conclusion,  shall  give  to  the 
auditor  of  state,  through  the  attorney-general's  department  of 
state,  the  right  to  institute  the  necessary  civil  proceedings  or 
to  participate  therein,  and  to  prosecute  the  same  in  any  of  the 
courts  of  the  state  to  a  final  conclusion.  [95  v.  514;  97  v. 
273.] 


564  THE    OHIO    MUNICIPAL    CODE. 

[Sec.  9.]  [Expense  of  maintaining  and  operating  bureau;  how 
paid.]  The  expense  of  maintaining  and  operating  the  bureau 
herein  provided  for  shall  be  paid  by  the  several  counties  out 
of  the  general  county  fund,  in  proportion  to  their  population 
as  shown  by  federal  census  next  preceding  the  levy  hereby 
authorized,  and  the  auditor  of  state  is  hereby  authorized  and 
empowered  to  levy  upon,  and  collect  from  each  county  in  the 
state  its  proportion  of  said  expenses;  said  amount  shall  be 
paid  semi-annually  during  the  months  of  June  and  December 
of  each  year  following  the  passage  of  this  act,  and  shall  in  the 
aggregate  be  only  sufficient  to  pay  said  expenses.  The  same 
shall  be  paid  in  vouchers  of  the  auditor  of  state,  and  all  funds 
received  by  the  auditor  of  state  on  this  account  shall  be  cov- 
ered into  the  state  treasury  to  the  credit  of  bureau  of  inspec- 
tion and  supervision  account.      [May  10,  1902,  95  v.  514.] 

[Sec.  10.]  [Expense  of  audit.]  The  expenses  of  auditing 
public  accounts  shall  be  borne  by  each  taxing  district  for  the 
auditing  of  all  accounts  under  its  jurisdiction,  and  the  auditor 
of  state  is  hereby  authorized  and  empowered  to  certify  the 
expense  of  such  audit  to  the  auditor  of  the  county  in  which 
said  taxing  district  is  situated,  who  shall  promptly  issue  his 
warrant  on  the  county  treasurer  payable  out  of  the  general 
fund  of  the  county,  said  fund,  except  as  to  auditing  the  finan- 
cial affairs  and  making  inspections  and  examinations  of  the 
county,  to  be  reimbursed  by  the  county  auditor  out  of  the 
moneys  due  said  taxing  district  at  the  next  semi-annual  settle- 
ment of  the  collection  of  taxes.1     [95  v.  514;  87  v.  274.] 

Validity.— This  act  held  consti-       72  O.  S.  487. 
tional.     State  ex  rel.  v.  Schumate, 

5.     PROVISION  AS  TO  CONTRACTS  BY  OFFICERS. 

Sec.  799a  R.  S.  [Limitation  on  the  amount  of  bonds  hereinbe- 
fore required;  qualification  of  sureties;  penalty.]  The  bonds  pro- 
vided for  and  required  to  be  taken  by  any  board  or  officer  of  the 
county,  township,  city,  town,  village  or  school  district  of  the 
state,  by  virtue  of  sections  seven  hundred  and  ninety-four,1 
seven  hundred  and  ninety-five,  seven  hundred  and  ninety-six 
and  seven  hundred  and  ninety-seven,  as  amended,  and  sections 
seven  hundred  and  ninety-eight  and  seven  hundred  and  ninety- 
nine  of  the  Revised  Statutes,  shall  not  exceed  fifty  per  cent,  of 
the  estimated  cost  of  any  public  building,  bridge  superstructure 
or  bridge  substructures,  or  repairing,  altering  or  rebuilding 
the  same,  and  the  officers  named  herein  may  require  the  person 


OFFICERS.  565 

or  persons  on  the  bond  of  the  successful  bidder  or  bidders  to 
qualify  that  they  are  residents  of  the  state  of  Ohio,  and  are 
jointly  worth  a  greater  sum  than  the  amount  named  in  the  bond 
over  and  above  all  liabilities  and  exemptions  allowed  by  law. 
Any  officer  violating  any  of  the  provisions  of  chapter  twelve  2 
shall  be  fined  in  any  sum  not  exceeding  one  thousand  dollars. 
[1888,  April  13:  85  v.  218,  222.] 

( 1 )  §  794  is  re-enacted  in  §   143      section  occurs,  there  is  no  "  Chapter 
of  the  Code.  12." 

(2)  In   Title   VI.    in   which    this 


566  THE    OHIO    MUNICIPAL    CODE. 

II 

JUDICIAL. 


1.     POLICE  COURT.1 

(a)   Jurisdiction  of  Court  and  Judge.2 

Sec.  1785  R.  S.  [Police  court.]  In  cities  of  the  first  class, 
and  in  cities  of  the  third  grade,  third  grade  a,  and  third  grade 
c,  of  the  second  class,3  there  shall  be  a  court,  held  by  the  police 
judge,  which  court  shall  be  styled  the  police  court,4  and  be  a 
court  of  record.5  Provided  that  in  cities  of  the  third  grade  c, 
the  city  council  by  a  two-thirds  vote  may  abolish  the  office  of 
police  judge  and  vest  the  mayor  of  said  city  with  all  the  powers 
of  a  police  judge  as  provided  by  the  Revised  Statutes  of  the 
state  of  Ohio;  and  when  such  office  of  police  judge  has  been 
so  abolished,  it  shall  not  be  again  re-established  except  by  a 
like  vote  of  council,  but  no  action  of  counsel  shall  extend  or 
curtail  the  term  of  office  of  a  mayor  or  police  judge  who  may 
be  serving  at  the  time  the  change  may  be  made  by  council.  [93 
v.  615 ;  89  v.  19 ;  88  v.  161 ;  84  v.  26,  27 ;  82  v.  54,  58 ;  Rev. 
Stat.  1880;  72  v.  51,  §  168.] 

(1)  Title,  division  and  chapter.  and  may  be  prosecuted  in  the  name 
The  sections  given  under  1  were  of  the  corporation.  Markle  v.  Ak- 
contained  in  Chap.  1,  Div.  5,  Title      ron,  14  O.  586. 

XII  of  Revised  Statutes.  ( 5 )   Court  of  record. —  See  Terry 

(2)  Sections  under  (a)  were  con-      v.  State,  22  C.  C.   16. 

tained  in  sub-division  1  of  Chap.  5,  Special  police  court  acts  among 

Div.  5,  Title  XII  R.  S.  the  sections  contained  in  the  repeals 

(3)  See  note  under  §  190  of  the  by  the  Code  are  as  follows:  Akron, 
Code.  17076     R.     S.;     Cincinnati,     1708a 

(4)  Prosecutions  brought  in  R.  S.;  Cleveland,  1545-13,  1544-45, 
the  name  of  corporation. —  Of-  1545-71  R.  S.;  Columbus,  1545-100, 
fenses  against  municipal  corpora-  1545-122,  1545-138,1545-148  R.  S.; 
tions  are  regarded  as  quasi-criminal,  Dayton,  1744a  R.  S. 

Sec.  1785a  R.  S.  [Police  court  in  certain  cities.]  In  cities  of 
the  first  grade  of  the  second  class,  there  shall  he  a  court  held 
by  the  police  judge,  which  court  shall  he  styled  the  police  court 


POLICE    COURTS.  567 

and  be  a  court  of  record.  The  provisions  of  the  Revised  Stat- 
utes and  the  amendments  thereto  relating  to  police  courts  and 
the  officers  thereof,  not  inconsistent  with  this  act,  are  hereby 
made  applicable  to  police  courts  and  the  officers  thereof  in 
cities  of  the  first  grade  of  the  second  class.      [88  v.  67.] 

Sec.  1785b  R.  S.  [Election  of  police  judge  and  prosecuting  at- 
torney.] In  such  cities  of  the  first  grade  of  the  second  class, 
there  shall  be  chosen  by  the  electors,  at  the  first  annual  mu- 
nicipal election  after  the  passage  of  this  act,  a  police  judge 
and  prosecuting  attorney  of  the  police  court,  each  of  whom 
shall  serve  for  the  term  of  three  years  and  until  their  succes- 
sors are  elected  or  appointed  and  qualified,  and  thereafter  as 
the  terms  of  such  officers  expire,  their  successors  shall  in  like 
manner  be  elected  to  serve  for  three  years;  vacancies  shall  be 
filled  by  the  mayor  for  the  unexpired  term.  In  such  cities 
the  secretary  of  the  board  of  police  commissioners  shall  be  ex 
officio  clerk  of  the  police  court.      [88  v.  67.] 

Sec.  1785c U.S.     [Dayton  police  court;  laws  governing.]     In 

cities  of  the  second  grade  of  the  second  class  there  shall  be  a 
court  held  by  the  police  judge,  which  court  shall  be  styled  the 
police  court,  and  be  a  court  of  record.  The  provisions  of  the 
Revised  Statutes  and  the  amendments  thereto  relating  to  police 
courts  and  the  officers  thereof,  not  inconsistent  with  this  act, 
are  hereby  made  applicable  to  police  courts  and  the  officers 
thereof  in  cities  of  the  second  grade  of  the  second  class.  [89 
v.  136.] 

Sec.  1785dR.  S.  [Election  and  term  of  judge  and  clerk;  va- 
cancies; prosecuting  attorney.]  In  such  cities  of  the  second 
grade  of  the  second  class  there  shall  be  chosen  by  the  electors, 
at  the  first  annual  municipal  election  after  the  passage  of  this 
act,  a  police  judge,  who  shall  serve  for  the  term  of  three  years 
and  until  his  successor  is  elected  or  appointed  and  qualified; 
and  a  clerk  of  the  police  court,  who  shall  serve  for  the  term  of 
three  years  and  until  his  successor  is  elected  or  appointed  and 
qualified;  and  thereafter,  is  the  terms  of  such  officers  expire, 
their  successors  shall  in  like  manner  be  elected  to  serve  for  the 
terms  provided  above,  respectively,  for  such  officers.  Vacan- 
cies in  the  office  of  police  judge  shall  be  filled  by  the  governor 
for  the  unexpired  term.  Vacancies  in  the  office  of  the  clerk 
of  the  police  court  shall  be  filled  by  the  mayor  for  the  unex- 
pired term.  A  prosecuting  attorney  of  the  police  court  shall 
be  appointed  by  the  board  of  police  directors  of  such  city  within 
three  days  after  the  first  election  and  qualification  of  the  police 
judge  provided   for  herein.     The   prosecuting   attorney   shall 


568  THE    OHIO    MUNICIPAL    CODE. 

serve  for  the  term  of  three  years  and  until  his  successor  is 
elected  or  appointed  and  qualified,  and  thereafter,  as  the  term  of 
such  officer  expires,  his  successor  shall  in  like  manner  be  ap- 
pointed by  such  board  of  police  directors  to  serve  for  a  like 
term.  Vacancies  shall  be  filled  by  such  board  of  police  direc- 
tors for  the  unexpired  term.  The  clerk  and  the  prosecuting  at> 
torney  shall  receive  no  fees  or  perquisites,  but  the  clerk  shall 
receive  an  annual  salary  of  twelve  hundred  dollars,  and  the 
prosecuting  attorney  shall  receive  an  annual  salary  of  fifteen 
hundred  dollars,  both  payable  monthly  out  of  the  city  treas- 
ury.     [89  v.  136.] 

Sec.  1785e  R.  S.  [Ashtabula  police  court.]  In  cities  of  the 
fourth  grade  a  of  the  second  class  there  shall  be  a  court  held 
by  a  police  judge,  which  court  shall  be  styled  the  police  court, 
and  be  a  court  of  record.  The  provisions  of  the  Eevised  Stat- 
utes and  all  acts  amendatory  and  supplementary  thereto  relating 
to  police  courts  throughout  the  state,  and  the  officers  thereof, 
not  inconsistent  with  the  provisions  of  this  act,  are  hereby 
made  applicable  to  police  courts  and  the  officers  thereof,  in 
cities  of  the  fourth  grade  a  of  the  second  class.      [91  v.  59.] 

Sec.  1785f  R.  S.  [Election  and  term  of  judge;  vacancies;  clerk; 
deputy.]  In  cities  of  the  fourth  grade  a  of  the  second  class 
there  shall  be  chosen  by  the  electors,  at  the  first  annual  mu- 
nicipal election  after  the  passage  of  this  act,  a  police  judge, 
who  shall  serve  for  the  period  of  three  years  and  until  his  suc- 
cessor is  elected  or  appointed  and  qualified,  and  thereafter,  as 
the  term  of  such  judge  expires,  his  successor  shall  in  like 
manner  be  elected,  to  serve  for  the  period  of  three  years ;  vacan- 
cis  in  the  office  shall  be  filled  by  the  governor.  Such  judge 
shall  be  ex  officio  clerk  of  his  own  court,  with  all  of  the  powers 
and  duties  now  conferred  upon  clerks  of  the  police  courts  by 
the  provisions  of  the  Eevised  Statutes,  and  the  acts  amendatory 
and  supplementary  thereto,  not  inconsistent  with  this  act;  pro* 
vided,  that  he  shall  be  entitled  to  a  deputy  clerk  of  the  police 
court  who  may  perform  any  duty  of  his  principal,  who  shall 
be  appointed  by  such  police  judge  by  and  with  the  consent  of 
the  council  of  such  cities,  when  by  them  deemed  necessary,  and 
who  shall  receive  such  compensation  for  his  services  as  the 
council  shall  prescribe.  Such  judge  and  ex  officio  clerk  and 
also  such  deputy  clerk  of  the  police  court  shall  give  such  bond, 
with  sureties,  as  the  council  of  such  cities  may  require.  [91 
v.  59.] 

Sec.  1785gR.  S.  [Election  of  police  judge  in  Portsmouth; 
clerk  of  police  court;  vacancy.]     In  cities  of  the  second  class, 


POLICE    COURTS.  569 

third  grade  c,  there  shall  be  chosen  by  the  electors  therein,  at 
the  first  annual  municipal  election  held  after  the  passage  of  this 
act,  a  police  judge,  who  shall  serve  for  the  term  of  three  years, 
and  until  his  successor  is  elected  or  appointed  and  qualified, 
and  thereafter,  as  the  term  of  such  officer  expires,  his  succes- 
sor shall  in  like  manner  be  elected  to  serve  for  the  term  herein 
provided,  and  the  police  judge  in  such  city  shall  be  ex  officio 
clerk  of  the  police  court;  and  a  vacancy  in  the  office  of  such 
police  judge  shall  be  filled  by  the  governor  until  the  next  mu- 
nicipal election,  when  it  shall  be  filled  for  the  unexpired  term. 
[93  v.  615.] 

Sec.  1786  R.  S.  [Seal.]  Said  court  shall  have  a  seal,  with 
the  name  of  the  state  in  the  center,  and  the  style  of  the  court 
in  the  margin;  and  it  shall  be  the  duty  of  council  to  furnish 
such  seal.      [72  v.  51,  §  168.] 

Sec.  1787  R.  S.  [General  jurisdiction  to  inquire  into  crimes, 
etc.]  The  jurisdiction  of  said  court  to  make  inquiry  in 
criminal  cases  shall  be  the  same  as  that  of  a  justice  of  the 
peace,1  and  the  judge  shall  have  the  same  power  to  take  ac- 
knowledgment of  deeds,2  and  other  instruments  of  writing,  ad- 
minister oaths,  and  take  and  certify  depositions.  [66  v.  176, 
§   166;    (S.  &  S.   797;   S.   &  C.   1520,   1521).] 

(1)  What  jurisdiction  may  be  The  information  being  unsupported 
conferred. —  Police  courts  may  be  by  oath  or  affirmation,  held,  a  mo- 
given  jurisdiction  of  offenses  com-  tion  to  quash  will  lie.  Eichenlaub 
mitted  outside  city  limits.  Ex  v.  State,  36  O.  S.  140. 
parte  Hagenschneider,  7  N.  P.  313;  Mistake  in  sentence. —  See  Lee 
Fletcher  v.  State,  18  C.  C.  674.  v.  State,  32  O.  S.  113. 

But  see  contra,  State  v.  Voris,  8  (2)   Acknowledgments. —  A  jus- 

N.  P.  16.  tice  of  the  peace  or  mayor  may  take 

Information  supported  by  oath.  acknowledgments  outside  his  coun- 

—  One  charged   with  a  misdemean-  ty.     Crumbaugh  v.  Kugler,  2  O.  S. 

or  was   prosecuted  by   information.  373;  Moore  v.  Moore,  3  O.  S.  154. 

An  act  to  confer  jurisdiction  upon  police  courts.1 

[Sec.  1.]  [Police  court;  final  jurisdiction  of.]  The  police 
court  shall  have  jurisdiction  of  any  offense  under  any  ordinance 
of  the  city,  and  of  any  misdemeanor  committed  within  the 
limits  of  the  city  or  within  four  miles  thereof,  to  hear  and 
finally  determine  the  same,  and  to  impose  the  prescribed  pen- 
alty ;  but  cases  in  which  the  accused  is  entitled  to  a  jury  trial, 
shall  be  so  tried  unless  a  jury  be  waived.  [1904,  Jan.  22, 
97  v.  7.] 


570  THE    OHIO    MUNICIPAL    CODE. 

(1)  Sec.  1788  R.  S. —  This  act  eluded  in  list  of  repeals  in  the 
corresponds  to  what  was  originally  code.  See  note  under  §  191  of  the 
section    1788    K.    S.    which   was    in-      Code. 

Sec.  1788 — 1  R.  S.  [Police  jurisdiction  in  Zanesville.]  Power 
and  authority  is  hereby  vested  in  the  council  of  all  cities  which 
by  the  last  preceding  federal  census  had  a  population  of  not 
less  than  21,009  and  not  more  than  21,020,  or  which  at  any 
subsequent  federal  census  may  have  such  population  to  pro- 
vide by  ordinance  for  the  extension  of  the  jurisdiction  of  the 
city  ordinances  for  police  regulation  for  the  distance  of  one 
mile  outside  the  corporate  limits  of  said  city.      [92  v.  743.] 

Sec.  1788— 2  R.  S.  [As  to  warrants  and  affidavits.]  Upon  the 
passage  of  such  ordinance  by  the  council  of  any  city,  having 
such  population,  all  ordinances  of  said  city  for  police  regula- 
tion will  be  obeyed  and  respected,  and  all  affidavits  and  war- 
rants shall  be  good  as  to  jurisdiction  if  the  offense  charged  was 
committed  with  the  radius  of  one  mile  outside  of  the  limits 
of  said  city.      [92  v.  743.] 

Sec.  1789  R.  S.  [Hearing  in  felonies.]  In  felonies  commit- 
ted within  the  county,  the  court  shall  have  the  powers  of  a 
justice  of  the  peace  to  hear  the  case,  and  discharge,  recognize, 
or  commit;  and  if,  upon  such  hearing,  the  court  is  of  the 
opinion  that  the  offense  is  only  a  misdemeanor,  and  that  the 
court  may  entertain  jurisdiction  of  it  under  [the  last]  section 
a  plea  of  guilty  of  such  misdemeanor  may  be  received,  and 
sentence  and  judgment  pronounced ;  but  if  in  such  case  the  ac~ 
cused  decline  to  enter  such  plea,  the  court,  without  discharging 
the  accused,  shall  cause  the  prosecuting  attorney  to  immedi- 
ately file  in  the  court  an  information  against  the  accused  for 
such  misdemeanor,  on  which  charge  he  shall  be  tried  in  that 
court,  after  an  entry  has  been  made  discharging  him  of  the 
felony.1 

( 1 )  Cannot  convict  of  felony. —  convict  a  person  charged  with  a  f el- 
Police    Court   has   no   authority   to       ony.     State  v.  Hamilton,  3  C.  C.  10. 

Sec.  1790  R.  S.  [Where,  on  charge  of  misdemeanor,  proof 
shows  felony.]  Where  the  charge  is  the  commission  of  a  mis- 
demeanor, and  the  proof  shows  that  the  party  has  committed 


POLICE    COURTS. 


571 


a  felony,  the  court,  upon  the  proper  affidavit  being  filed,  shall 
discharge  the  party  as  to  the  misdemeanor,  and  admit  him  to 
bail  or  commit  him,  as  the  case  may  be,  for  the  felony. 

Sec.  1791 R.  S.  [General  powers.]  The  court  shall  have 
power  to  issue  process,  preserve  order,  and  punish  contempts, 
summon  and  impanel  jurors,  grant  new  trials  and  motions  * 
in  arrest  of  judgment,  suspend  execution  of  sentence  upon  no- 
tice of  intention  to  apply  for  leave  to  file  a  petition  in  error,2 
and  such  other  powers  incident  to  the  Court  of  Common  Pleas,3 
as  may  be  necessary  for  the  exercise  of  the  jurisdiction  herein 
conferred,  and  the  enforcement  of  the  judgments  and  orders 
of  tha  court.    '  [72  v.  51,  §  168 ;  S.  &  C.  1521.] 


(1)  New   trial   and   motions. — 

Granting  new  trials  in  Police  Court 
are  governed  by  same  rules  as  those 
in  Courts  of  Common  Pleas  in  crim- 
inal cases.  Germantown  v.  Basore, 
22  C.  C  417. 

Time  for  filing  motion  for  new 
trial.  See  Evans  v.  State,  23  C.  C. 
103;  3  C.  C.  (N.  S.)  23  (aff'd  68 
O.  S.  700). 

(2)  Reviewable  on  weight  of 
evidence. —  Judgments  of  a  mayor 
of  conviction  for  the  violation  of  an 
ordinance  may  be  reviewed  on  the 
weight  of  the  evidence.  Flatau  v. 
Mansfield,  14  C.  C.  592,  595. 
Contra  Williams  v.  State,  25 
0.  S.  628.  Since  the  decision  in 
Williams  v.  State  supra,  the  law 
has  been  changed  by  statute  and 
that  case  no  longer  applies,  and  a 
conviction  either  in  a  police  court 
or  mayor's  court  may  be  reveiwed 
on  the  weight  of  the  evidence.  Ger- 
mantown v.   Basore,  22  C.   C.  417. 


See  also  Slaughter  v.  Columbus,  61 
O.  S.  53. 

But  a  judge  of  police  court  hav- 
ing the  opportunity  to  see  the  wit- 
nesses is  best  qualified  to  judge  of 
their  credibility,  and  his  findings 
should  not  be  disturbed  unless  man- 
ifestly wrong.  Evans  v.  State,  23 
C.  C.  103;  Niefeld  v.  State,  23  C. 
C.  246. 

(3)  Powers  incident  to  Court 
of  Common  Pleas. —  Judge  of  po- 
lice court  or  mayor  may  allow  time 
to  sign  bill  of  exceptions.  German- 
town  v.  Basore,  22  C.  C.  417,  421. 

They  are  governed  by  same  rules 
as  in  civil  cases  in  Court  of  Com- 
mon Pleas.     lb. 

May  punish  for  contempt. —  By 
this  section  the  police  court  has 
power  to  punish  by  contempt  fail- 
ure to  answer  subpoena.  Woods  v. 
State,  30  B.  290. 

Written  charges  are  not  neces- 
sary,    lb. 


Sec.  1792 U.S.     [In    what    name    prosecutions    carried    on.] 

Prosecutions  for  offenses  against  the  laws  of  the  state  shall 
be  brought  and  conducted  in  the  name  of  the  state,  and  prose- 
cutions for  violations  of  city  ordinances  shall  be  brought  and 
conducted  in  the  name  of  the  corporation ;  and  in  any  case  a 
new  trial  may  be  granted  within  the  same  time  and  for  the 
same  cause  as  in  like  cases  in  the  Court  of  Common  Pleas.1  [66 
v.  177,  §  196  (169)  ;  (S.  &  S.  798).] 


572  THE    OHIO    MUNICIPAL     CODE. 

( 1 )  Averments  necessary  in  in-  averred  in  information.  See  Massa 
formation. —  As   to   what  must   be      v.  State,  3  C.  C.  9. 

Sec.  1793  R.  S.  [Terms  of  the  court.]  The  police  court 
shall  always  be  open  for  the  transaction  of  business,  but  may 
adjourn  from  day  to  day,  or  from  time  to  time,  and  shall  be 
considered  as  holding  monthly  terms,  each  commencing  on  the 
first  Monday  of  the  month.1  [72  v.  51,  §  171;  (S.  &  S. 
799).] 

( 1 )    Holidays. —  Courts  may   ad-      unlawful  to  hold  court  on  holiday, 
journ  on  a  legal  holiday.     Jones  v.       State  v.  Thomas,  61  O.  S.  444. 
State,   14  C.  C.  35.     But  it  is  not 

Sec.  1794  R.  S.  [Mode  of  prosecuting,  etc.]  The  mode  in 
which  business  shall  be  brought  before  the  court  shall  be  fixed 
by  ordinance  of  the  city  council  or  rule  of  court.1  [72  v.  51, 
§171;  (S.  &S.  799).] 

(1)  Limitation.  —  The  require-  pensed  with  by  §§  1794  and  1795 
ment  that  a  warrant  must  be  found-  R.  S.  Eichenlaub  v.  State,  36  O. 
ed  on  oath  or  affirmation,  is  not  dis-       S.  140,  144. 

Sec.  1795  U.S.  [Rules.]  The  judge  shall  adopt  such  rules 
of  practice  and  procedure  as  will  give  each  party  a  proper 
statement  of  any  charge  against  him,  and  a  full  opportunity 
of  being  heard,  which  rules  shall  be  placed  in  the  court  room. 
[66  v.  177,  §173;  (S.  &  S.  799).] 

Sec.  1796  R.  S.  [As  to  dispatch  of  business;  interpreter.]  The 
business  of  the  court  shall  be  dispatched  with  all  the  speed  con- 
sistent with  a  full,  fair  trial  or  hearing  of  the  cases.  In  cities 
where  there  is  more  than  one  police  judge  —  the  judges  of  the 
police  court  may  appoint  an  interpreter  for  said  court  —  and 
in  case  they  fail  to  agree,  the  clerk  of  said  court  may  appoint  an 
interpreter  for  said  court  for  the  term  of  two  years  who  shall 
receive  as  compensation  fifteen  hundred  dollars  per  year. 

Said  interpreter  shall  attend  all  sessions  of  said  court  and 
obey  all  orders  of  the  judges  of  said  court;  he  shall  receive 
no  fees  while  acting  in  the  capacity  of  interpreter  and  said 
judges  shall  have  power  for  adequate  cause  to  remove  said 
interpreter.  [1904,  April  25,  97  v.  387;  90  v.  256;  88  v.  99; 
66  v.  177.] 

Sec.  1797  R.  S.  [Salary  of  judge.]  The  judge  of  the  police 
court  shall  receive  no  fees  or  perquisites,  but  shall  receive  such 
annual  compensation,  not  exceeding  two  thousand  dollars,  as  the 
council  may  prescribe,  payable  quarterly  out  of  the  city  treas- 


POLICE    COURTS.  573 

ury,  and  such  further  compensation  payable  out  of  the  county 
treasury,  as  the  commissioners  of  the  county  may  deem  proper ; 
but  in  cities  of  the  first  grade  of  the  first  class  such  judge  shall 
receive  not  less  than  fifteen  hundred  dollars  a  year  from  the 
city  treasury,  and  not  less  than  fifteen  hundred  dollars  a  year 
from  the  county  treasury ;  and  m  cities  of  the  first  grade  of  the 
second  class,  such  judge  shall  receive  a  salary  of  two  thousand 
dollars  per  year,  payable  monthly,  out  of  the  city  treasury ; 
and  nothing  in  this  section  shall  prohibit,  any  police  judge 
from  receiving  the  fees  from  [for]  taking  the  acknowledgment 
of  instruments,  depositions  and  affidavits  which  are  allowed  to 
justices  of  the  peace  for  like  service.  [88  v.  67 ;  66  v.  177,  § 
170;  (S.  &S.  798).] 

Sec.  1797a  R.  S.  [Salary  of  judge  in  Dayton;  fees.]  In  cities 
of  the  second  grade  of  the  second  class,  the  judge  of  the  police 
court  shall  receive  no  fees  or  perquisites,  but  shall  receive  an 
annual  salary  of  two  thousand  dollars,  payable  monthly  out  of 
the  city  treasury,  and  nothing  in  this  section  shall  prohibit 
such  police  judge  from  receiving  the  fees  for  taking  the  ac- 
knowledgment of  instruments,  depositions  and  affidavits  which 
are  allowed  to  justices  of  the  peace  for  like  services,  [89  v. 
137.] 

Sec.  1797b  R.  S.  [Compensation  of  Ashtabula  police  judge; 
fees;  fines.]  In  cities  of  the  fourth  grade  a  Of  the  second  class 
the  police  judge  and  ex  officio  clerk  of  the  police  court,  in 
criminal  cases  or  prosecutions,  shall  receive  no  fees,  fines  or 
perquisites,  but  shall  receive  such  annual  compensation  as  the 
council  of  such  cities  shall  prescribe  by  ordinance,  payable 
quarterly  out  of  the  city  treasury,  and  such  further  compensa- 
tion payable  out  of  the  county  treasury  as  the  commissioners 
of  the  county  may  deem  proper;  provided,  that  such  judges 
shall  receive  from  the  county  treasury  not  less  than  two  hun- 
dred dollars;  provided  further,  that  nothing  in  this  section* 
shall  prohibit  any  such  judge  and  ex  officio  clerk  from  receiving 
such  fees  in  civil  cases,  and  for  taking  acknowledgments  of 
instruments,  depositions,  affidavits,  etc.,  as  are  allowed  justices 
of  the  peace  for  like  services;  and  all  fines  and  fees  collected 
for  the  violation  of  ordinances  shall  be  turned  over  to  the 
city  treasurer,  by  such  judge,  on  or  before  the  fifth  day  of 
each  month,  and  he  shall  make  a  written  statement  of  the 
number  and  amount  of  the  same,  and  file  the  same  with  the  city 
clerk  before  the  first  regular  meeting  of  the  council  of  such  cities 
in  each  month,  who  shall  report  the  same  to  the  council  and 
make  a  minute  of  the  same  upon  the  council  .journal ;  and  all 


574  THE    OHIO    MUNICIPAL    CODE. 

fines  or  fees  collected  by  him  for  violations  of  the  state  laws 
shall,  on  or  before  the  first  day  of  January,  April,  July  and 
October,  respectively,  of  each  year,  be  turned  over  to  the  county 
treasurer.      [91  v.  59.] 

Sec.  1797c U.S.  [Clerk  of  police  court  in  Portsmouth;  com- 
pensation; fees  for  taking  acknowledgments,  etc.]  In  cities  of 
the  second  class,  third  grade  c,  the  police  judge  shall  be  ex 
officio  clerk  of  the  police  court,  and  shall  receive  such  compen- 
sation for  the  performance  of  both  the  duties  of  police  judge 
and  clerk  of  police  court  as  may  be  allowed  him  by  ordinance 
of  council,  and  the  county  commissioners,  as  provided  in  sec- 
tion 1808  and  no  more;  provided,  that  any  such  police  judge 
may  receive  such  fees  for  taking  acknowledgments,  depositions, 
and  affidavits,  as  are  allowed  by  law  to  justices  of  the  peace  for 
like  services.      [93  v.  615.] 

Sec.  1798  It.  S.  [Provisions  as  to  jurors,  witnesses,  etc.]  .  The 
court  shall  have  power  to  compel  the  attendance  of  witnesses, 
jurors,  and  parties ;  jurors  shall  have  the  qualifications  and  be 
subject  to  the  challenges  of  those  in  the  court  of  common  pleas 
in  like  cases;  they  shall  be  selected,  summoned,  and  impaneled 
in  accordance  with  an  ordinance  of  the  council,  or  if  no  such 
ordinance  is  in  force,  in  accordance  with  a  rule  of  the  court ;  1 
and  they  shall  receive  the  same  fees  as  are  allowed  jurors  in  the 
court  of  common  pleas  in  such  cases,  which  shall  be  payable 
out  of  the  county  treasury  in  state  cases,  and  out  of  the  city 
treasury  in  cases  for  the  violation  of  ordinances.2  [66  v.  177, 
§  172.] 

(1)    Struck   jury. —  There    is   no  the  violation  of  an  ordinance,  is  il- 
law  authorizing  a  struck  jury  in  po-  legal.     Thomas    v.    Village   of   Ash- 
lice  court.     State  ex  rel.   v.   Erms-  land,  12  O.  S.  124. 
ton,  4  C.  C.  81.  (2)    Payment    of    jury    fees.— 

Where  no  provision  for  jury. —  When  municipality  and  when  state 

Where  there  is  no  trial  by  jury  pro-  pays  jury  fees,  see  State  ex  rel.  v. 

vided  a  sentence  of  imprisonment  by  Cappeller,  5  B.  363. 
the  mayor,  of  a  person  charged  with 

Sec.  1799  R.  S.  [Witnesses'  fees.]  Witnesses  in  the  police 
court  shall  be  allowed  the  same  fees  in  cases  arising  from  a 
violation  of  the  ordinances,  as  are  allowed  in  like  cases  before 
justices  of  the  peace,  which  shall  be  paid  in  the  same  manner ; 
and  in  state  cases  the  same  fees  as  in  like  cases  in  the  court  of 
common  pleas,  which  shall  be  paid  in  the  same  manner.1 
[66  v.  178,  §  178;  (S.  &  C.  1537).] 

(1)  For  witness  fees  in  cases  be- 
fore justices  of  peace  and  Common 
Pleas  Court,  see  §  1301  R.  S. 


POLICE    COURTS.  575 

Sec.  1800  R.  S.  [Other  fees.]  Other  fees  in  the  police  court 
shall  be  the  same  in  state  cases  as  are  allowed  in  the  probate 
court,  or  before  justices  of  the  peace,  in  like  cases;  and  in 
cases  for  violation  of  ordinances  such  fees  as  the  council  shall, 
by  ordinance,  prescribe,  not  exceeding  the  fees  for  like  services 
in  state  cases.      [66  v.  178,  §  177.] 

Sec.  1801 R.  S.  [Recognizances.]  In  felonies,  the  court 
shall  recognize  such  of  the  witnesses  as  will  probably  be  re- 
quired in  the  court  of  common  pleas  to  appear  in  that  court; 
one  instrument,  in  which,  under  the  penalty  named,  the  wit- 
nesses shall  severally  undertake  to  appear  before  the  court 
of  common  pleas  of  the  county  forthwith,  or  at  the  next  term, 
as  the  case  may  be,  shall  be  sufficient ;  all  recognizances,  wheth- 
er of  the  accused  or  the  witnesses,  shall,  when  taken,  be  certi- 
fied and  entered  on  the  journal,  and  forthwith  delivered  to  the 
clerk  of  the  court  of  common  pleas ;  and  neither  coverture,  nor 
minority,  shall  be  a  defense  to  any  recognizance.  [66  v.  178, 
§  176.] 

Sec.  1802  R.  S.  [Acting  police  judge;  Toledo.]  During  the 
absence,  inability  or  disability  of  the  judge,  the  mayor  may 
hold  the  court,  or  may  select  for  the  purpose  a  reputable  mem- 
ber of  the  bar,  or  a  justice  of  the  peace,  residing  within  the 
city,  who'  shall  have  the  jurisdiction  and  powers  conferred  upon 
judges  of  police  courts,  be  styled  "  acting  police  judge  "  and, 
as  such,  sign  all  process  and  records  during  the  time  he  shall 
serve,  and  perform  all  other  acts  pertaining  to  the  office;  and 
in  case  the  mayor  hold  the  court,  he  shall  have  all  the  powers, 
and  perform  all  the  duties  of  the  judge ;  *  except,  that  in  cities 
of  the  third  grade  of  the  first  class,  during  the  absence,  inability 
or  disability  of  the  judge,  the  clerk  of  police  court  shall  select 
for  the  purpose  of  holding  court  a  reputable  member  of  the 
bar,  or  a  justice  of  the  peace,  residing  within  the  city,  who 
shall  have  the  jurisdiction  and  powers  conferred  upon  judges 
of  police  courts,  be  styled  "  acting  police  judge,"  and,  as  such, 
sign  all  process  and  records  during  the  time  he  shall  serve,  and 
perform  all  other  acts  pertaining  to  the  office.  [April  29, 
1902,  95  v.  293 ;  70  v.  248 ;  66  v.  170 ;  (S.  &  S.  800).] 

(1)  Validity. —  The  power  given  — Even  if  the  power  to  appoint  is 
the  mayor  to  appoint,  in  the  tern-  not  constitutional,  yet  the  person 
porary  absence  of  police  judge  is  acting  under  the  appointment  will 
not  in  contravention  of  Art.  4,  §  33  be  a  de  facto  judge.  Ex  parte 
of  the  Constitution.  Molitor  v.  Strang,  21  O.  S.  610;  Brown  v.  To- 
State,  6  C.  C.  263.  ledc,  7  N.  P.  435. 

Where   appointment   defective.  The    acts    of   a    de    facto    officer, 


576  THE    OHIO    MUNICIPAL    CODE. 

when  questioned  collaterally,  are  as  263;  and  this  is  so  even  though  the 

valid  and  binding  as  those  of  an  of-  one   appointing   had   only   colorable 

ficer  de  jure.     Ex  parte  Strang,  21  authority     to     appoint.     Ex     parte 

O.  S.  610;  Molitor  v.  State,  6  C.  C.  Strang,  21  O.  S.  610. 

Sec.  1803  U.S.     [Compensation  of  acting  police  judge.]     The 

person  selected  as  judge  shall  be  paid  for  the  time  occupied 
in  the  same  manner  and  at  the  same  rate  as  the  police  judge, 
and  the  amount  so  paid  shall  not  he  deducted  from  the  com- 
pensation of  the  police  judge;  provided  the  said  absence,  in- 
ability or  disability  of  the  police  judge,  and  the  holding  of 
the  court  by  such  acting  police  judge,  shall  not  exceed  sixty 
days  in  any  one  year;  and  all  courts  shall  take  judicial  notice 
of  the  selection  and  powers  of  such  person.  [1882,  April  11 ; 
79  v.  85 ;  Kev.  Stat  1880 ;  70  v.  248,  §  174 ;  66  v.  170,  §  124.] 

(b)   Clerk  of  Police  Court.1 

Sec.  1804  U.S.  [Clerk  of  police  court:  his  powers.]  The  clerk 
of  the  police  court  shall  have  power,  when  an  affidavit  is  filed 
with  him  for  a  peace  warrant,  search  warrant,  or  charging 
any  person  with  the  commission  of  an  offense,  to  issue  a  war- 
rant under  seal  of  said  court  to  arrest  the  accused  or  search 
the  place  described;  to  admit  to  bail  any  person  accused  of  a 
misdemeanor  or  violation  of  an  ordinance  for  his  appearance 
at  the  next  sitting  of  the  police  court  or  mayor,  as  the  case 
may  be ;  and  the  bond  given  to  continue  until  the  case  is  finally 
disposed  of ;  and  also  to  admit  to  bail  any  person  accused  of  a 
felony  when  the  amount  of  bail  has  been  fixed  by  the  court  or 
mayor,  as  the  case  may  be;  to  appoint  one  or  more  deputies 
to  be  approved  by  the  council,  to  administer  oaths  and  to  per- 
form all  other  things  which  may  be  performed  by  the  clerk  of 
the  court  of  common  pleas  in  like  cases.2  [92  v.  98 ;  84  v. 
26,  27;  83  v.  68;  Kev.  Stat.  1880;  67  v.  72,  §  185;  66  v.  178, 
§  182.] 

( 1 )  The  sections  under  this  head-  Issuing  a  warrant  is  a  ministerial 
ing  were  contained  in  sub-division  2  and  not  a  judicial  act.  Molitor  v. 
of  Chap.  1,  Div.  5,  Title  XII  R.  S.  State,  6  C.  C.  263. 

(2)  Section     constitutional.  — 

Sec.  1805 U.S.  [Duties  as  to  papers.]  He  shall  file  and 
preserve  all  informations,  process,  motions,  and  papers  of  every 
description  used  in  the  court.,  except  such  as  he  may  be  re- 
quired to  transmit  to  another  court,  [66  v.  179,  §  187;  (S.  & 
C.  1537).] 


POLICE    COURTS.  577 

Sec.  1806  R.  S.  [Journal;  record.]  He  shall  keep  a  journal 
of  all  orders  and  judgments  of  the  court,  and  on  the  opening 
of  the  court  on  any  day,  the  minutes  of  the  preceding  day 
shall  be  read,  and  signed  by  the  judge,  the  errors,  if  any,  being 
first  corrected;  and  the  entries  on  the  journal  in  any  case,  in 
connection  with  the  information  and  other  papers,  shall  con- 
stitute and  have  the  force  of,  a  final  record.  [66  v.  179,  §  187; 
(S.  &  C.  1537).]  . 

Sec.  1807  R.  S.  [Report.]  He  shall,  on  the  first  Monday  of 
every  month,  make,  under  oath,  to  the  city  auditor,  a  report  of 
all  fines,  penalties,  fees,  and  costs  imposed  by  the  court  in 
city  cases,  showing  in  what  cases  the  same  have  been  paid, 
and  in  what  cases  they  remain  unpaid;  and  also,  at  the  same 
time,  he  shall  make  a  like  report  to  the  county  auditor  as  to 
state  cases;  and  he  shall  immediately  pay  into  the  city  and 
county  treasuries,  respectively,  the  amount  then  collected,  or 
which  may  have  come  into  his  hands,  from  all  sources,  during 
the  preceding  month.      [66  v.  179,  §  189.] 

Sec.  1808  R.  S.  [His  bond  and  compensation.]  He  shall  give 
such  bonds,  with  sureties,  as  may  be  required  by  the  council 
and  county  commissioners,  and  shall  receive  for  his  services, 
in  city  cases,  a  fixed  salary  to  be  prescribed  by  ordinance  of  the 
council,  not  more  than  two  thousand  dollars  per  annum,  and 
for  state  cases  such  further  allowance,  not  more  than  two  thou- 
sand dollars  per  annum,  payable  out  of  the  county  treasury, 
as  the  county  commissioners  may  deem  proper.  [1904,  April 
19,  97  v.  101;  93  v.  615;  91  v.  195;  91  v.  158;  89  v.  19;  88 
v.  161;  84  v.  26,  27;  83  v.  68;  Eev.  Stat.  1880;  66  v.  178.] 

Sec.  1809  R.  S.  [Powers,  salary,  and  bonds  of  deputy  clerk; 
Cincinnati,  Cleveland  and  Toledo.]  A  deputy  olerk  of  the  po- 
lice court  may  perform  any  duty  of  the  principal;  he 
shall  receive  such  compensation  as  the  council  may  prescribe, 
but  not  exceeding  fifteen  nor  less  than  seven  hundred  dollars 
per  year;  and  such  further  compensation  in  cities  of  the 
first  class  of  the  first  grade  as  the  county  commissioners  shall 
determine,  but  not  exceeding  six  hundred  dollars  per  year  and 
such  further  compensation  in  cities  of  the  first  class  of  the  sec- 
ond or  third  grade  as  the  county  commissioners  shall  determine, 
but  not  exceeding  five  hundred  dollars  per  year ;  and  the  princi- 
pal may  take  from  him  an  undertaking,  with  sureties,  for  the 
faithful  performance  of  such  official  duties.  [92  v.  401 ;  85  v. 
'7;  83  v.  68;  Eev.  Stat.  1880;  67  v.  72,  §  135;  (S.  &  S.  799).] 

Sec.  1810  R.  S.     [Inability   or    absence   of   clerk;    substitute.] 


578  THE    OHIO    MUNICIPAL    CODE. 

When  there  is  a  temporary  inability  or  absence  of  the  clerk  and 
no  deputy  has  been  appointed,  or  where  a  vacancy  of  the  office 
occurs  by  resignation,  death,  or  otherwise,  the  judge,  or  if  there 
be  more  than  one  judge  then  the  judges,  of  said  court  may 
appoint  some  competent  person  who,  upon  giving  the  bond 
and  taking  the  oath  of  office  prescribed,  shall  have  the  powers 
and  perform  the  duties  of  the  clerk ;  and  the  person  so  appoint- 
ed shall  be  paid  out  of  the  city  treasury,  on  the  order  of  the 
council,  at  the  same  rate  the  clerk  is  paid  for  similar  services ; 
but  in  no  case  of  temporary  inability,  or  absence,  such  appoint- 
ment shall  be  valid  only  until  the  inability  be  removed  or  the 
clerk  return.  [94  v.  69 ;  Rev.  Stat,  of  1880 ;  66  v.  179,  § 
186.] 

Sec.  1811  R.  S.  [Clerk  and  deputy  not  to  practice  in  certain 
cases.]  Neither  the  clerk  nor  his  deputy  shall  be  concerned 
as  counsel  or  agent  in  the  prosecution  or  defense  of  any  case 
that  is  or  has  been  before  the  court.1      [66  v.  179,  §  188.] 

(1)    See   §    1817a   R.   S.   infra,  p.    581. 

Sec.  1812 U.S.  [Surplus  fees  after  payment  of  expenses.]  If 
there  be  any  surplus  of  the  fees  collected  for  the  city,  after 
payment  of  the  expenses  of  the  police  court  required  to  be 
paid  by  the  city,  such  surplus  shall,  in  cities  of  the  first  class, 
except  as  otherwise  provided  by  law,  be  appropriated  by  council 
for  the  benefit  of  the  common  schools  of  the  city.  [1887, 
Feb.  17:  84  v.  26,  27;  Rev.  Stat.  1880;  66  v.  179,  §  190.] 


(c)   Prosecuting  Attorney.1 

Sec.  1814 R.  S.  [Salary.]  He  shall  receive  for  his  services 
in  city  cases  such  salary  as  the  council  may  prescribe,  which 
shall  be  paid  out  of  the  city  treasury;  and  the  county  com- 
missioners shall  allow  him  such  further  compensation  as  they 
deem  proper,  not  exceeding  fifteen  hundred  dollars  per  annum, 
which  shall  be  paid  out  of  the  county  treasury;  but  in  cities 
of  the  first  grade  of  the  second  class  the  prosecuting  attorney 
shall  receive  an  annual  salary  of  fifteen  hundred  dollars  pay- 
able monthly  out  of  the  city  treasury.  [90  v.  169 ;  88  v.  68 ; 
QQ  v.  179,  §  192;  (S.  &  C.  1536).] 

(1)    The  sections  under  headings  omitted  here,  are  incorporated  in  § 
"c"  and  "d"  were  contained  in  sub-  137   of  the  Code,  under  which   sec- 
division   3,    Chap.    I,   Div.    5,    Title  tion  they  may  be  found. 
XII  R.  S.       §§  1813  and  1815  R.  S. 


police  courts.  579 

(d)   Police  Judicial  Districts  in  Cleveland. 

Sec.  1815 — 1  R.  S.  [Police  judicial  districts  and  police  jus- 
tices (Cleveland) ;  jurisdiction,  etc.]  In  cities  of  the  first  class 
and  second  grade,  the  city  council  shall  have  the  power  to  des- 
ignate as  many  police  judicial  districts  as  may  from  time  to 
time  be  necessary,  and  shall  provide  for  the  election,  term  of 
office  and  compensation  and  territorial  jurisdiction  of  a  police 
justice  for  each  police  judicial  district,  but  nothing  in  this  act 
shall  prevent  police  judges  from  having  jurisdiction  in  any  and 
all  cases  in  any  police  judicial  district  as  herein  provided  for. 
The  city  council  shall  provide  a  place  where  each  police  justice 
shall  hold  his  court,  prescribe  the  procedure  therein,  appoint 
a  clerk  for  each  district,  fix  his  compensation,  term  of  office  and 
his  duties,  subject  to  the  provisions  of  this  act.  These  courts 
shall  have  official  seals,  to  be  furnished  by  the  city,  on  which 
shall  be  engraved  the  state  arms  and  the  words  "  Police  judicial 
district  ~No.  —  of  Ohio."      [89  v.  306.] 

Sec.  1815 — 2  R.  S.  [Regulations  governing  courts.]  Said  po- 
lice court  justices  shall  hold  their  courts  under  and  subject  to 
such  regulations  as  may  be  prescribed  by  the  citv  council. 
[89  v.  306.] 

Sec.  1815 — 3R.  S.  [Jurisdiction  and  powers  of  police  justices; 
sessions;  process.]  Said  police  justices  shall  have  final  juris- 
diction in  all  cases  of  violation  of  any  ordinance  of  the  city 
in  which  they  are  located,  except  in  cases  where  the  accused  is 
entitled  to  a  jury  trial,  and  demand  the  same,  or  in  cases  where 
the  validity  of  an  ordinance  is  involved ;  in  which  cases,  the 
police  justice  shall  forthwith  certify  the  case  with  all  the 
papers  and  certified  copies  of  the  docket  entries  to  the  police 
court.  The  said  police  justices  shall  have  power  to  issue  pro- 
cesses and  preserve  order  and  punish  for  contempt,  grant  mo- 
tion for  new  trials,  motions  in  arrest  of  judgment,  suspend  exe- 
cutions of  sentence  upon  notice  of  intention  to  apply  for  leave 
to  file  petition  in  error,  and  shall  exercise  all  other  powers  nec- 
essary in  the  exercise  of  their  jurisdiction.  Said  court  shall 
always  be  open  for  business,  and  the  processes  issued  by  said 
courts  shall  be  served  by  the  police  force  of  said  cities.  [89 
v.  306.] 

Sec.  1815 — 4R.  S.  [Rules  of  practice  and  procedure.]  Said 
police  justices  shall  have  power  to  make  such  rules  of  practice 
and  procedure  as  are  necessary  to  the  exercise  of  their  juris- 
diction and  allow  the  accused  a  full  opportunity  of  being  heard. 
[89  v.  306.] 


580  THE    OHIO  'MUNICIPAL    CODE. 

Sec.  1815 — 5  R.  S.     [Powers,  duties  and  bond  of  clerks.]    The 

clerks  of  said  police  districts  shall  have  power  to  administer 
oaths,  admit  to  bail,  qualify  sureties  on  bail  bonds,  and  shall 
keep  a  full  record  of  the  proceedings  of  said  courts;  shall 
collect  all  fines  and  penalties  and  pay  the  same  into  the  city 
treasury;  and  shall  give  a  good  and  sufficient  bond  for  the 
faithful  performance  of  the  duties  in  such  sum  as  the  city 
council  shall  determine.      [89  v.  306.] 

Sec.  1815 — 6  R.  S.  [Compensation  of  police  justices.]  The 
compensation  of  a  police  justice  shall  not  be  less  than  $1,500  per 
annum,  payable  quarterly  from  the  city  treasury.      [89  v.  306.] 

Sec.  1815 — 7  R.  S.  [Election,  appointment,  etc.,  of  justices.] 
Said  police  justices  shall  be  elected  on  the  first  municipal  elec- 
tion held  after  the  passage  of  this  act;  and  the  mayor  of  any 
city  of  the  second  grade  and  first  class  may  appoint  some  suit- 
able person  or  persons  for  each  police  judicial  district  in  their 
respective  cities,  who  shall  hold  the  position  until  said  election, 
with  the  full  powers  and  subject  to  all  the  provisions  of  this 
act;  provided,  the  city  council  shall  make  the  divisions  as  pro- 
vided in  section  1  [§(1815 — 1)]  of  this  act;  and  if  a  vacancy 
should  occur  or  any  police  justice  be  unable  from  absence, 
sickness  or  other  cause  to  hold  court,  then  the  mayor  may  des- 
ignate some  suitable  person,  who  shall  hold  court  during  said 
absence  or  inability  of  the  police  justice,  or  until  the  vacancy  is 
filled  by  election.      [89  v.  306.] 

Sec.  1815— 8  R.  S.  [Power  of  clerk  to  adjourn  court.]  The 
clerk  of  each  police  judicial  district  shall  have  power  to  ad- 
journ court  in  the  absence  of  the  justice.      [89  v.  306.] 

2.     POLICE  POWER  OF  MAYOR,  POLICE  JUSTICE, 

ETC.1 

(a)  Iisr  Cities  Except  of  the  Fibst  Class.2 

Sec.  1816  R.  S.  [Final  jurisdiction  in  city  cases.]  In  cities, 
other  than  those  which  have  a  police  court,  the  mayor  shall  have, 
final  jurisdiction  to  hear  and  determine  any  prosecution  for 
the  violation  of  an  ordinance  of  the  corporation,  unless  im- 
prisonment is  prescribed  as  part  of  the  punishment.  [66  v. 
169,  §  114;  69  v.  192,  §  117.] 

(1)    Sections  under  this   heading  (2)     This    was    subdivision    1    of 

were  contained  in  Chap.  2,  Div.  5,       Chap.  5. 
Title  XII  R.  S. 

Sec.  1817  R.  S.  [Final  jurisdiction  of  certain  state  cases.] 
He  shall  have  final  jurisdiction  to  hear  and  determine  any 
prosecution  for  a  misdemeanor,  unless  the  accused  is,  by  the 


POLICE  COURTS.  581 

constitution,  entitled  to  a  trial  by  jury,1  and  his  jurisdiction 
in  such  cases  shall  be  co-extensive  with  the  county.  [66  v. 
169,  §114;  69  v.  192,  §117.] 

( 1 )    No  jury  trial,   when.— In  State  v.  Borham,  72  0.  S.  358.    See 

cases  where  fine  is  the  punishment,  also    Dominick    v.    State,    27    C.    C. 

and  imprisonment  is  provided  only  305;   6  C.  C.    (N.  S.)    192. 

when  fine  is  not  paid,  defendant  has  Change     of     venue     in    misde-. 

no  right  to  jury  trial,  and  mayor  meanor    prosecutions    before    mayor 

may  try  the  case.     Ward  v.  State,  not  authorized.     Fike  v.   State,   25 

5  N.  P.  8 1 ;  see  also  Inwood  v.  State,  C.  C.  554.    And  see  Kappes  v.  State, 

42  0.  S.  186;  Peters  v.  State,  8  N.  25  C.  C.  723;  4  C.  C.  (N.  S.)   14. 

P.  595;  67  O.  S.  494.  Review  on  weight  of  evidence. 

Entering   a    plea    of   guilty    is    a  — A   conviction   for   a  misdemeanor 

waiver    of    jury    trial.      Hillier    v.  before  a  mayor,  over  which  he  has 

State,  26  C.  C.  777;  5  C.  C.  (N.  S.)  final  jurisdiction,  may  be  reviewed 

245.  by    a    proceeding    in    error    on    the 

Final  jurisdiction  under  the  cir-  ground  that  the  conviction  is  against 

cumstances     mentioned     is     clearly  the  weight  of  the  evidence.    Koch  v. 

given  in  this  section,  and  it  must  be  State,   73   0.   S.    131.     See  Fike  v. 

construed    as    an    exception   to   the  State,  25  C.  C.  554;  4  C.  C.  (N.  S.) 

general  provisions  of   §  7146  R.   S.  81. 

Sec.  1817a U.S.  [Clerk  of  mayor's  court  not  to  be  concerned 
in  prosecution  or  defense.]  Neither  the  clerk  of  the  mayor's 
court,  nor  his  deputy,  shall  be  concerned  as  counsel  or  agent 
in  the  prosecution  or  defense  of  any  case  that  is  or  has  been, 
before  the  court  of  which  such  person  is  clerk  or  deputy. 
[1881,  March  11:  78  v.  50.] 

Sec.  1813  It.  S.  [Jurisdiction  where  jury  is  waived.]  He  shall 
have  such  jurisdiction  in  the  cases  mentioned  in  the  last 
two  sections,  notwithstanding  the  right  to  a  jury,  if  before  the 
commencement  of  the  trial,  the  accused  waive  a  jury  trial.1 
[66  v.  169,  §  114;  69  v.  192,  §  117.] 

(1)  When  record  silent  as  to  is  silent  as  to  waiver,  no  jurisdic- 
waiver. —  When  defendant  is  en-  tion  is  shown.  Ward  v.  State,  5  N. 
titled  to  jury  trial,  and  the  record       P.  81. 

Sec.  1819  R.  S.  [Certain  city  cases  must  be  tried  by  jury.]  If 
the  charge  is  the  violation  of  an  ordinance  in  a  matter  with  re- 
spect to  which  imprisonment  may  be  a  part  of  the  punishment, 
and  the  accused  does  not  waive  a  jury,  the  mayor  shall,  never- 
theless, impanel  a  jury,  and  try  the  case  on  the  affidavit,  in 
the  same  manner,  and  with  like  effect,  as  misdemeanors  are 
tried  in  the  court  of  common  pleas  on  indictment.1  [66 
V.  169,  §  114;  69  v.  192,  §  117.] 

(1)  Cited  in  Morgan  v.  Nolte,  37  O.  S.  23. 

Sec.  1820  R.  S.  [Certain  state  cases  may  be  tried  by  jury.j 
If  the  charge  is  the  commission  of  a  misdemeanor,  prosecuted  in 
the  name  of  the  state,  and  the  accused,  being  entitled  to  a  jury, 


582 


THE    OHIO    MUNICIPAL    CODE. 


does  not  waive  the  right,  the  mayor  may,  nevertheless,  impanel 
a  jury,  and  try  the  case  on  the  affidavit,  in  the  same  manner, 
and  with  like  effect,  as  such  cases  are  tried  in  the  court  of 
common  pleas  on  the  indictment.  [6Q  v.  169,  §  114;  69 
v.  192,  §  117.] 

Sec.  1821  R.  S.  [In  certain  state  cases  accused  may  be  recog- 
nized, etc.]  The  mayor  may,  however,  decline  to  have  such 
state  case  tried  before  him  by  a  jury,  if  in  his  opinion  the 
public  interest  will  thereby  be  promoted,  and,  having  entered 
that  fact  on  his  minutes,  inquire  into  the  complaint,  discharge 
the  accused,  or  recognize  him  to  the  court  of  common  pleas 
or  probate  court,  as  the  case  may  be,  or  commit  him  in  de- 
fault of  bail.1      |_66  v.  169,  §  114;  69  v.  192,  §  117.] 

(1)    Money  in   lieu   of  bail. —  ury,    it   cannot   be    recovered   back. 

Where  a  person  arrested  for  violat-  Columbus  v.  Reinhard,  1  C.  C.  289. 

ing     a     penal     statute,     makes     an  Mayor  has  discretion  to  refuse  a 

agreement    with    mayor    to    deposit  jury  trial  and  hold  the  accused  to 

money    in    lieu    of    bail,    and    said  answer  to  a  higher  court.    Hillier  v. 

money   is   deposited  into  the  treas-  State,  26  C.  C.  777;  5  C.  C.  (N.  S.) 

245. 

Sec.  1822  E.  S.  [Jurisdiction  in  felonies,  etc.]  In  felonies, 
and  other  criminal  proceedings  not  herein  provided  for,  such 
mayor  shall  have  jurisdiction  and  power,  throughout  the  county, 
concurrent  with  justices  of  the  peace.1  [QQ  v.  169,  §  114;  69 
v.  192,  §  117.] 

(1)  Criminal  jurisdiction  of  jus- 
tices of  the  peace  is  provided  in  § 
610  R.  S. 

(b)   In  Villages.1 

Sec.  1823  R.  S.     [Final    jurisdiction   under   ordinances.]       In 

villages,  the  mayor  shall  have  final  jurisdiction  to  hear  and 
determine  any  prosecution  for  the  violation  of  an  ordinance 
of  the  corporation,  unless  imprisonment  is  prescribed  as  part  of 
the  punishment.2      \_6Q  v.  169,  §  114;  69  v.  192,  §  117.] 

( 1 )  This  was  Subd.  2  in  Chap.  2,  cused  of  violating  an  ordinance,  who 
Div.  5,  Title  XII  R.  S.  §  1843  after  giving  bail  to  appear  at  a  cer- 
omitted  here  is  incorporated  in  §  tain  time  fails  to  appear  at  the 
200  of  the  Code,  page  451  hour    fixed    for   trial.       Truman   v. 

(2)  In   absence   of   accused.—      Walton,  59  0.  S.  517. 
The  mayor  cannot  try  a  person  ac- 

Sec.  1824  R.  S.  [Jurisdiction  in  certain  state  offenses.]  He 
shall  have  final  jurisdiction  to  hear  and  determine  any  prosecu- 
tion for  a  misdemeanor,  unless  the  accused  is  by  the  constitution 
entitled  to  a  trial  by  jury;  and  his  jurisdiction  in  such  cases 


POLICE   COURTS.  583 

shall  be  co-extensive  with  the  county.1      \_Q6  v.  169,  §  114;  «»«.> 

v.  192,  §  117.] 

(1)   Tribunals  of  limited  juris*  Affidavit   of   prejudice   not  al- 

diction    must    at    their    peril    keep  lowed.     §  550  R.  S.  has  no  applica- 

within    their    jurisdiction    and    are  tion  to  mayors.     Carey  v.  State,  70 

answerable  to  anyone  whose  rights  O.    S.    121 ;    nor    has    §  6529    R.    S. 

are   invaded;    and,    honesty   of   pur-  Kappes  v.  State,  5  C.  C.  (N.  S.)   183. 

pose,    while    it    may   mitigate   dam-  Information  not  necessary  to  be 

ages,  cannot  justify  a  usurpation  of  filed.   Misdemeanor  cases  may  be  in- 

power.     Truman  v.  Walton,  59  0.  S.  stituted  upon  filing  affidavit.     Ku- 

517;    Truesdell  v.   Combs,   33   0.   S.  bach  v.  State,  2  C.  C.   (IS.  S.)    133; 

186.  25  C.  C.  489. 

Constitutionality. —  This   section  Jury    not    necessary    where    fine 

giving  jurisdiction  coextensive  with  only    is    punishment.      Kubach    v. 

the  county  is  constitutional.     Carey  State,  2  C.  C.  (N.  S.)   133;  25  C.  C. 

v.   State,  70  0.   S.   121;    Kubach  v.  489;  Harlow  v.  State,  1  N.  P.    (N. 

State,  2  C.  C.   (N.  S.)   133,  25  C.  C.  S.)    323;    Wells   v.    State,    1    N.   P. 
489.                                                             ■   .(N.  S.)  309. 

Sec.  1825  R.  S.  [Jurisdiction  when  jury  is  waived.]  He  shall 
have  the  jurisdiction  in  the  cases  mentioned  in  the  last  two  sec- 
tions, notwithstanding  the  right  to  a  jury,  if  before  the  com- 
mencement of  the  trial,  a  waiver  in  writing,  subscribed  by  the 
accused,  is  filed  in  the  case.  [66  v.  169,  §  114;  69  v."  192, 
§  117.] 

Sec.  1826  R.  S.  [When  violation  of  ordinance  tried  by  jury.] 
He  may  summon  a  jury,  and  try  the  accused,  in  any  prosecu- 
tion for  the  violation  of  an  ordinance,  where  imprisonment  is  a 
part  of  the  prescribed  punishment,  and  the  accused  does  not 
waive  a  jury;  and  in  such  case,  judgment  shall  be  rendered 
in  accordance  with  the  verdict,  unless  a  new  trial,  for  sufficient 
cause,  is  granted.      [66  v.  169,  §  114;  69  v.  192,  §  117.] 

Sec.  1827  R.  S.  [When  he  may  recognize,  etc.,  for  violation  of 
ordinance.]  He  may  decline  to  permit  the  trial,  mentioned  in 
the  last  section,  if  in  his  opinion  the  public  interest  will  be 
thereby  promoted,  and  having  entered  that  fact  on  his  docket, 
proceed  to  inquire  into  the  complaint,  and  discharge  the  ac- 
cused, recognize  1  him  to  the  court  of  common  pleas,2  or  com- 
mit him  in  default  of  bail;  and  in  such  case  the  court  of 
common  pleas  shall  have  jurisdiction  of  the  offense.  ^()Q  v. 
169,  §  114;  69  v.  192,  §  117.] 

(1)  When  mayor  may  recog=  Pleas  Court. —  When  upon  viola- 
nize. —  On  disagreement  by  jury,  tion  of  a  village  ordinance,  a  mayor 
the  mayor  may  recognize  accused  to  certifies  the  case  to  the  Court  of 
appear  before  Common  Pleas  Court,  Common  Pleas,  the  proper  course  is 
instead  of  retrying  him.  Earhart  to  proceed  to  trial  upon  the  affida- 
v.  Village  of  Lebanon,  5  C.  C.  578.  vit  filed  before  the  mayor.    Finnical 

(2)  Procedure     in     Common      v.  Village  of  Cadiz,  61  0.  S.  494. 

Sec.  1828  R.  S.  [When  misdemeanor  may  be  tried  by  jury.] 
In  misdemeanors  prosecuted  in  the  name  of  the  state  he  may 


584  THE    OHIO    MUNICIPAL    CODE. 

summon  a  jury  and  try  the  case  notwithstanding  the  accused 
has  a  right  to  a  jury  which  he  has  not  waived,  if  a  request  for 
such  trial  subscribed  by  the  accused  is  filed  in  the  case,  before 
the  commencement  of  the  trial;  provided,  that  in  villages  sit- 
uated in  counties  containing  a  city  of  the  first  grade  of  the 
first  class  such  request  by  the  accused  shall  not  be  necessary. 
And  in  such  case  the  trial  shall  be  had  on  the  affidavit  in  the 
same  manner  and  with  like  effect  as  a  trial  is  Had  on  an  in- 
dictment for  such  offense  in  the  court  of  common  pleas. 
[89  v.  362;  6Q  v.  169,  §  114;  69  v.  192,  §  117.] 

Sec.  1829  R.  S.  ]  When  he  may  recognize  in  such  cases.]  If  in 
the  opinion  of  the  mayor  the  public  interest  will  thereby  be 
promoted,  he  may  decline  to  permit  such  trial,  and  having  en- 
tered that  fact  on  his  docket,  proceed  to  inquire  into  the  com- 
plaint, and  discharge  the  accused,  recognize  him  to  the  court 
of  common  pleas  or  probate  court,  as  the  case  may  be,  or 
commit  him  in  default  of  bail.  [QQ  v.  169,  §  114;  69  v.  192, 
§  117.] 

Sec.  1830  R.  S.  [Jurisdiction  in  felonies,  etc.]  In  felonies,  and 
other  criminal  proceedings  not  herein  provided  for,  such  mayor 
shall  have  jurisdiction  and  power  throughout  the  county,  con- 
current with  justices  of  the  peace.1  \_6Q  v.  169,  §  114;  69  v. 
192,  §  117.] 

( 1 )      Jurisdiction. —  In     felonies  to  the  Court  of  Common  Pleas  or 

the  mayor  has  only  the  powers  of  Probate  Court.     Truman  v.  Walton, 

an   examining   court   and    can   only  59  O.  S.  517,  526. 
discharge   or   recognize   the   accused 

Sec.  1830 — 1  R.  S.  [Denning  boundary  line  between  villages 
adjoining  each  other  on  opposite  sides  of  railroad,  and  their  sep- 
arate jurisdiction.]  Whenever  two  villages  adjoin  each  other 
on  opposite  sides  of  the  line  of  any  railroad  in  any  county 
containing  a  city  of  the  first  grade  of  the  first  class,  the  "boun- 
dary line  between  such  villages,  except  where  the  same  had 
been  established  previous  to  the  passage  of  the  act  hereby  re- 
pealed, shall  be  along  the  middle  of  the  right  of  way  of  said 
railroad.  And  the  boundary  lines  of  villages  affected  by  said 
act  passed  March  31st,  1881,  are  hereby  changed  and  re-es- 
tablished on  the  lines  established  previous  to  the  passage  of 
said  act.      [88  v.  242 ;  78  v.  93.] 

Sec.  1830 — 2  R.  S.  [Jurisdiction  of  municipality  over  right  of 
way  of  railroad  adjoining  or  forming  part  of  boundary  line.] 
Whenever  the  line  of  a  railroad  adjoins  or  forms  a  part  of 
the  boundary  line  of  a  municipal  corporation,  such  municipal 
corporation  shall  have  jurisdiction  over  the  entire  width  of  the 
right  of  way  of  the  line  of  railroad,  so  adjoining  or  forming 
a  part  of  the  boundary  line  of  such  municipal  corporation,  for 


POLICE   COURTS.  585 

the  punishment  of  the  violation  of  the  ordinances  of  such  mu- 
nicipal corporation.     [92  v.  428.] 

Sec.  1831  R.  S.  [Appointment  of  police  justice ;  powers  and 
duties.]  In  villages  the  council  may,  upon  the  recommenda- 
tion of  the  mayor,  by  an  affirmative  vote  of  two-thirds  of  all 
the  members  elected,  appoint  some  justice  of  the  peace,  resident 
of  the  corporation,  or  if  there  be  no  such  justice  of  the  peace, 
other  suitable  person  resident  of  the  corporation  or  a  justice  of 
the  peace  for  the  township  in  which  such  corporation  is  situate, 
police  justice,  who  shall,  during  the  term  of  office  of  such 
mayor,  unless  removed  on  suggestion  of  such  mayor  by  a  two- 
thirds  vote  of  all  the  members  of  the  council,  have  concurrent 
jurisdiction  of  all  prosecutions  for  violations  of  ordinances  of 
the  corporation  with  full  power  to  hear  and  determine  the 
same,  and  shall  have  the  same  powers,  perform  the  same  duties, 
and  be  subject  to  the  same  responsibilities  in  all  such  cases  as 
are  prescribed  in  the  Revised  Statutes  of  Ohio,  to  be  performed 
by  and  are  conferred  upon  the  mayors  of  such  corporations. 
Any  person  so  appointed  police  justice,  other  than  a  justice  of 
the  peace,  shall  take  an  oath  of  office  and  give  bond  in  such 
sum  for  the  faithful  performance  of  his  duties  as  the  council 
may  require.  [98  v.  159;  95  v.  353;  93  v.  12;  89  v.  139;  69  v. 
192.] 

Sec.  1832  R.  S.  [Manner  of  signing  process ;  his  seal,  powers, 
etc.]  Such  justice  of  the  peace  so  appointed  shall  be  styled 
11 Police  justice,"  in  which  style  he  shall  sign  all  process  and 
records  during  the  time  he  shall  serve ;  he  shall  have  a  seal,  to 
be  provided  by  the  council,  with  the  name  of  the  state  in  the 

center,  and  the  words,  "Police  justice  of  the  village  of f" 

around  the  margin ;  and  all  the  provisions  of  this  chapter  appli- 
cable to  the  mavor  of  a  village  shall  apply  to  such  police  justice. 
[69  v.  192,  §  117.] 

(c)  In  Hamlets.1 

Sec.  1833  R.  S.  [Power  of  president  of  board  and  justice  of 
the  peace.]  A  justice  of  the  peace  of  a  township  in  which  a 
hamlet,  or  any  part  of  it,  may  be  situated,  or  the  president 
of  the  board  of  trustees  of  such  hamlet,2  shall  have  juris- 
diction in  any  prosecution  for  the  violation  of  any  ordinance  of 
such  corporation,  to  hear  and  finally  determine  the  same,  and 
impose  the  prescribed  punishment,  unless  imprisonment  is  a 
part  of  the  prescribed  punishment.      [73  v.  170,  §  56.] 

(1)    This  was  subdivision  3,  chap.  (2)    See    note    "Status    of   Ham- 

2,  div.   5,  Title  XII.,  R.  S.  lets  "  under  §  1  of  the  Code. 

Sec.  1834  R.  S.  [When  he  may  finally  hear  and  determine.] 
If  imprisonment  is  a  part  of  the  prescribed  punishment  for 
such  offense,  the  justice  or  president  shall  have  jurisdiction  to 


586  THE    OHIO     MUNICIPAL    CODE. 

hear  and  determine  the  case,  and  inflict  the  prescribed  punish- 
ment, if  the  accused  before  the  commencement  of  the  trial, 
subscribes  and  files  in  the  case  a  waiver  of  a  jury.      [73  v.  170, 

§56.] 

Sec.  1835  It.  S.  [When  he  shall  recognize,  etc.]  If  in  the 
cases  mentioned  in  the  last  section,  the  accused  does  not  sub- 
scribe such  waiver,  the  justice  or  president  shall  inquire  into 
the  complaint,  and  discharge  the  accused,  or  recognize  him  to 
appear  before  the  court  of  common  pleas,  or  commit  him  ia 
default  of  bail,  and  in  such  case  the  court  of  common  pleas 
shall  have  jurisdiction  of  the  offense,  and  shall  direct  the  pros- 
ecuting attorney  to  file  an  information  against  the  accused, 
on  which  he  shall  be  tried.      [73  v.  170,  §  56.] 

Sec.  1836  R.  S.  [Disposition  of  fines.]  Fines  collected  by 
any  officer  for  the  violation  of  an  ordinance  of  a  hamlet,  shall 
be  by  him  paid  over  to  the  clerk  of  the  corporation,  to  be  ap- 
plied to  corporation  purposes.      [73  v.  170,  §  56.] 

(d)      Further  Provisions  Concerning  the  Powers  of  the 

Mayor  and  Other  Officers  in  Cities  and  Villages 

in  Matters  of  a  Criminal  or  Police  Nature.1 

Sec.  1837  R.  S.  [Further  as  to  powers  of  mayors  in  cities  and 
villages  in  criminal  matters.]  The  mayor  shall  have,  within 
the  corporate  limits,  all  the  powers  conferred  upon  sheriffs  to 
suppress  disorder  and  keep  the  peace;  and  he  shall  award 
and  issue  all  writs  and  process  that  may  be  necessary  to  en- 
force the  administration  of  justice  throughout  the  corporation, 
and  for  the  lawful  exercise  of  his  jurisdiction,  according  to  the 
usages  and  principles  of  law;  he  shall  subscribe  his  name  and 
affix  his  official  seal  to  all  writs,  process,  transcripts,  and  other 
official  papers;  and,  in  cities  having  no  police  judge,  in  the 
absence  or  during  the  disability  of  the  mayor,  he  may  designate 
a  justice  of  the  peace  to  perform  his  duties  in  criminal  matters, 
which  justice  shall,  during  the  time,  have  the  same  power  and 
authority  as  the  mayor.2      \_6Q  v.  169,  §  118.] 

(1)  This  was  subdivision  4,  chap.  is  not  liable  in  an  action,  for  false 
2,  div.  5,  Title  XII.,  R.  S.  §  1843  imprisonment.  Wheeler  v.  Gavin,  5 
R.  S.  omitted  here,  is  incorporated       C.  C.  246. 

in  §  200  of  the  Code,  page  451.  But  he  is  liable  when  he  does  not 

(2)  Liability  of  mayor. —  When  keep  within  his  prescribed  jurisdic- 
a  person  is  arrested  on  a  warrant  tion.  Truesdell  v.  Combs,  33  O.  S. 
for  violating  an  ordinance  sub-  186;  Truman  v.  Walton,  59  O.  S. 
aequently    held    invalid,    the   mayor  517. 


POLICE    COURTS. 


587 


Sec.  1838  R.  S.  [Proclamation  as  to  sale  of  liquors  on  election 
day.]  The  mayor  shall,  three  days  previous  to  and  on  the 
day  of  any  election,  issue  a  proclamation  to  the  public,  setting 
forth  therein  the  substance  of  the  enactments  to  prohibit  the 
sale  of  intoxicating  liquors  on  that  day ;  and  it  shall  be'  the  duty 
of  the  mayor  to  take  proper  measures  for  the  enforcement  of 
such  enactments.      [61  v.  24,  §  1 ;  S.  &  S.  344.1 

Sec.  1839 U.S.  [Ordinances  as  to  juries;  qualification  of  jur- 
rors,  etc.  ]  The  council  of  any  city  or  village  shall  have  power 
to  prescribe  by  ordinance  for  summoning  and  impaneling  juries 
under  this  division;  and  the  jurors  so  summoned  shall  have 
the  qualifications  of  jurors  in  the  court  of  common  pleas, 
and  may  be  impaneled  to  try  any  case  which,  by  the  constitu- 
tion, or  the  provisions  of  this  division,  is  triable  by  jury.  \_QQ 
v.  180,  §  194.] 

Sec.  1840  R.  S.  [Talesmen.]  When  any  juror  so  summoned, 
upon  challenge  or  inquiry,  is  found  incompetent,  he  may  be 
dismissed,  and  a  talesman  called  by  the  marshal,  or  other  officer 
attending  the  trial,  and  the  panel  shall  be  filled  in  the  same 
manner  as  panels  are  filled  in  the  court  of  common  pleas. 
[66  v.  180,  §  195.] 

Sec.  1841  R.  S.  [Penalties,  etc.,  of  jurors;  fees  of  jurors  and 
witnesses.]  Jurors  so  summoned  shall  perform  like  duties,  and 
be  subject  to  like  rules  and  penalties,  as  jurors  before  justices 
of  the  peace;  and  witnesses  and  jurors  shall,  except  as  herein 
otherwise  provided,  receive  the  same  compensation  as  witnesses 
before  justices  of  the  peace.      [66  v.  180,  §  196.] 

Sec.  1842  R.  S.  [How  fees  paid.]  In  cases  for  the  viola- 
tion of  ordinances,  the  fees  of  witnesses  and  jurors  shall  be 
paid,  on  the  certificate  of  the  officer  presiding  at  the  trial, 
out  of  the  corporation  treasury,  and  in  state  cases  on  like 
certificate  out  of  the  county  treasury.1      [66  v.  180,  §  196.] 

(1)  §  1843  R.  S.,  omitted  here, 
is  re-enacted  in  §  200  of  the  Code, 
page   451. 

Sec.  1844  R.  S.  [Contempt;  rules.]  The  officer  presiding  at 
any  such  trial  shall  have  like  power  to  punish  contempts,  and 
compel  the  attendance  of  jurors  and  witnesses,  and  to  establish, 
rules  for  the  examination  and  trial  of  all  cases  brought  before 
him,  as  is  or  may  be  conferred  on  justices  of  the  peace.  [66 
v.  180,  §  198.] 

Sec*.  1845  R.  S.  [Supervision  of  prison,  etc.]  The  mayor,  and 
in  his  absence,  the  president  of  the  council,  shall  have  power 
to  grant  to  magistrates  of  adjoining  or  contiguous  townships 


588  THE    OHIO     MUNICIPAL    CODE. 

the  temporary  use  of  the  corporation  prison,  station  or  watch- 
houses,  to  confine  criminals,  or  other  persons  dangerous  to  the 
peace  of  the  community,  until  they  can  be  safely  removed 
therefrom  to  the  county  jail,  or  other  place  of  security.  [66  v. 
170,  §  120.] 

Sec.  1846  It.  S.  [When  offender  may  be  confined  until  fine  and 
costs  paid.]  When  a  fine  is  the  whole  or  part  of  a  sentence,  the 
court,  mayor,  or  president  of  the  board  of  trustees,  may  order 
that  the  person  sentenced  shall  remain  confined  in  the  county 
jail,  work  house,  or  prison,  until  the  fine  and  costs  be  paid,  or 
secured  to  be  paid,  or  the  offender  be  otherwise  legally  dis- 
charged.1     [66  v.  314,  §  180;  60  v.  66,  §  1 ;  S.  &  S.  610.] 

(1)    When   mayor  not   entitled  Legislature   has  by   law   authorized 

to    costs. —  When    a    person   works  execution   against   the    person   in   a 

out   his   fine    and    costs,    at   a    city  criminal  case  only  where  fine  is  im- 

Workhouse,  the  city  is  not  liable  to  posed  as  part  of  the  penalty,  except 

the  mayor  for  his  costs.     Gibson  v.  under    §    6801    R.    S.     Luetzler    v. 

Zanesville,  31  O.  S.  184.  Perry,  18  C.  C.  826. 

Execution      against      person. — 

(e)   Jurisdiction  in  Cases  of  Food  Adulteration,  Etc. 

Sec.  3718a  R.  S.  [Jurisdiction  of  justices,  police  judges  and 
mayors  in  prosecutions  for  adulteration  of  food,  etc.,  and  for  cruel- 
ty to  animals  or  children.]  Any  justice  of  the  peace,  police 
judge,  or  mayor  of  any  city  or  village,  shall  each  have  jurisdic- 
tion within  his  county,1  in  all  cases  of  violation  of  the  laws  to 
prevent  the  adulteration  of  food  and  drink,  the  adulteration  or 
deception  in  the  sale  of  dairy  products,  or  any  other  foods,  and 
drugs  and  medicines,  and  any  violation  of  the  law  for  the  pre- 
vention of  cruelty  to  animals  or  children,  or  under  §  3140-2, 
4364-24,  4364-25,  6984,  6984a  of  the  Eevised  Statutes  of  Ohio. 

[Judicial  proceedings  in  such  cases  before  justices.]  In  any 
such  prosecution  where  imprisonment  may  be  a  part  of  the  pun- 
ishment>  if  a  trial  by  jury  be  not  waived,2  the  said  justice  of 
the  peace  shall,  not  less  than  three  nor  more  than  five  days  be- 
fore the  time  fixed  for  trial,  certify  to  the  clerk  of  the  court  of 
common  pleas  of  his  county  that  such  prosecution  is  pending 
before  him.  Thereupon  said  clerk  shall  proceed  to  draw,  in  the 
presence  of  representatives  of  both  parties,  from  the  jury  wheel 
or  box  containing  the  names  of  persons  selected  to  serve  as  petit 
jurors  in  the  court  of  common  pleas  in  said  county,  twenty  bal- 
lots or  names,  which  shall  be  drawn  and  counted  in  the  .same 
manner  as  for  jurors  in  said  court  of  common  pleas.  Said  clerk 
shall  forthwith  certify  the  names  so  drawn  to  said  justice  of  the 


POLICE  COURTS.  589 

peace,  who,  upon  receipt  thereof,  shall  issue  to  any  constable  of 
the  county  a  venire  containing  such  names  to  serve  as  jurors  to 
try  such  case  and  make  due  return  thereof.  The  jurors  shall  be 
subject  to  the  same  challenges  as  jurors  are  subject  to  in  crim- 
inal cases,  except  capital  cases,  in  the  court  of  common  pleas. 
If  the  venire  of  twentv  names  be  exhausted  without  obtaining 
the  required  number  to  fill  the  panel,  the  justice  shall  fill  the 
panel  with  talesmen  in  the  manner  provided  for  criminal  cases 
in  said  court  of  common  pleas. 

[Costs.]  In  all  cases  prosecuted  under  the  provisions  of  this 
act,  no  costs  shall  be  required  to  be  advanced  or  be  secured  by 
i*ny  person  or  persons  authorized  under  the  law  to  prosecute 
such  cast ...  ,  and  if  the  defendant  be  acquitted  or  discharged  from 
custody,  b  nolle  or  otherwise,  or  if  he  be  convicted  and  com- 
mitted in  deiault  of  paying  fine  and  costs,  all  costs  of  such  case 
shall  be  certified  by  said  justice  of  the  peace  under  oath  to  the 
county  auditor,  who,  after  correcting  any  errors  in  the  same, 
shall  issue  a  warrant  on  the  county  treasury,  in  favor  of  the 
person  or  persons  to  whom  such  costs  and  fees  shall  be  paid. 

[Attorney  in  prosecuting  for  cruelty  to  animals  or  children.] 

And  in  cases  brought  for  any  violation  of  law  for  the  prevention 
of  cruelty  to  animals  or  children,  or  under  §  3140-2,  6984, 
6984a  or  (7017-3)  Revised  Statutes  of  Ohio,  any  humane  so- 
ciety or  their  agents  may  employ  an  attorney  to  prosecute  the 
same,  who  shall  be  paid  for  his  services  out  of  the  county  treas- 
ury in  such  sum  as  any  judge  of  the  court  of  common  pleas  or 
probate  judge,  within  said  county,  or  the  county  commissioner 
may  approve  as  just  and  reasonable. 

[Jurisdiction  and  power  of  constable  in  such  cases;  fees.]  In 
pursuing  or  arresting  any  defendant  and  in  subpoenaing  the  wit- 
nesses, the  jurisdiction  and  powers  of  the  constable  or  other 
court  officer  acting  in  such  capacity,  in  all  such  cases,  shall  be 
the  same  as  that  of  the  sheriff  of  the  county  in  criminal  cases  in 
the  common  pleas  court,  and  he  shall  receive  the  same  fees 
therefor  as  are  allowed  said  sheriff. 

[Fees  of  jurors  and  witnesses.]  Jurors  in  all  such  cases  and 
witnesses  subpoenaed  in  all  such  cases  shall  be  entitled  to  like 
mileage  and  fees,  as  are  allowed  in  criminal  cases  in  the  court 
of  common  pleas,  and  in  all  other  respects,  in  so  far  as  the  same 
may  be  applicable,  the  procedure  provided  for  in  criminal  cases 
in  the  common  pleas  court  not  otherwise  inconsistent  herewith, 
shall  be  followed. 

[Affidavit;  what  to  contain.]  And  provided  further,  that 
where,  in  any  such  laws,  after  the  first  offense,  a  different  pun- 
ishment is  provided  for  subsequent  offenses,  the  information  or 


590  THE  OHIO  MUNICIPAL  CODE. 

affidavit,  in  order  to  avail  the  state  of  the  benefit  of  such  addi- 
tional punishment,  shall  so  charge  that  it  is  the  second  or  subse- 
quent offense,  and  unless  such  special  charge  is  so  made,  the 
punishment  shall  in  all  cases  be  as  of  the  first  offense.  All 
costs  and  moneys  which  are  to  be  paid  by  the  county  treasurer 
as  herein  provided,  shall  be  paid  out  of  the  general  revenue  fund 
of  said  county. 

[New  trial.]  And  in  any  case  prosecuted  under  the  pro 
visions  of  this  section,  a  new  trial,  after  a  verdict  of  conviction, 
may  be  granted,  for  any  of  the  reasons  enumerated  in  section 
seventy-three  hundred  and  fifty  of  the  Revised  Statutes,  upon 
the  written  application  of  the  defendant,  filed  within  three  days 
after  the  rendition  of  the  verdict;  provided  that  the  causes 
enumerated  in  subdivision  two,  three  and  five  of  said  section 
must  be  sustained  by  affidavits  or  other  evidence  showing  their 
truth  and  may  be  controverted  by  like  evidence.  [May  10, 
1902,  95  v.  517;  94  v.  92;  91  v.  412;  90  v.  335;  85  v.  144; 
81  v.  181.] 

( 1 )   Jurisdiction.  —  Under    this  ( 2 )   Jury  trial. —  Unless  affidavit 

section    prior    to    the    last    amend-  charges  the  particular  case  to  be  a 

ment  see  State  v.   Peters,  67  O.  S.  second  offense,  imprisonment  cannot 

494.  be  imposed  and  accused  may  be  tried 

Jurisdiction  given   to  justices  by  before  mayor  or  justice,  without  a 

this  section  does  not  give  them  ju-  jury.     State  ex  rel.  v.  Smith,  69  O. 

risdiction    of    violations    of    §    6957  S.  196;  see  Peters  v.  State,  8  N.  P. 

E.  S.     Marvin  v.  State,  5  N.  P.  209.  595 ;  67  O.  S.  494. 

Mandamus  will  lie  to  compel  ex-  Waiver   of  jury   need   not   be   in 

ercise  of  jurisdiction.     State  ex  rel.  writing;     Martindale    v.     State,     2 

v.  Smith," 69  O.  S.  196.  C.  C.  2. 

3.     FIXES  AXD  TMPKISONMENT.1 

Sec.  1864  It.  S.  [How  fines,  etc.,  recovered.]  Fines,  penalties, 
and  forfeitures  may,  in  all  cases,  and  in  addition  to  any  other 
mode  provided,  be  recovered  by  suit  or  action  before  any  justice 
of  the  peace,  or  other  court  of  competent  jurisdiction,  in  the 
name  of  the  proper  municipal  corporation,  and  for  its  use ;  and 
in  any  suit  or  action  where  pleading  is  necessary,  it  shall  be 
sufficient  if  the  petition  set  forth  generally  the  amount  claimed 
to  be  due  in  respect  of  the  violation  of  the  by-law  or  ordinance, 
referring  to  its  title,  and  the  date  of  its  adoption  or  passage, 
and  showing,  as  near  as  may  be  practicable,  the  true  time  of 
the  alleged  violation.      [66  v.  167,  §  108  ;  (S.  &  C.  1507).] 

(1)  Sections  under  this  heading  and  1863  of  that  chapter  are  re- 
were  contained  in  chap.  4,  div.  5,  pealed.  The  rest  are  contained 
Title    XII.,    R.    S.     §§    1861,    1862       herein. 

Sec.  1865  It.  S.  [Suits  must  be  commenced  within  one  year.] 
Suits  or  prosecutions  for  the  recovery  of  fines,  penalties,  or  for- 


POLICE   COURTS.  591 

feitures,  or  for  the  commission  of  any  offense  made  punishable 
by  any  by-law  or  ordinance  of  any  municipal  corporation,  shall 
be  commenced  within  one  year  after  the  violation  of  the 
ordinance,  or  commission  of  the  offense,  and  not  afterward. 
[66  v.  167,  §  109;  (S.  &  C.  1507).] 

Sec.  1866  R.  S.  [Party  to  be  committed  in  default  of  pay- 
ment.] When  a  fine  is  imposed  for  the  violation  of  an  ordinance 
of  the  corporation,  and  the  same  is  not  paid,  the  party  convicted 
shall,  by  order  of  the  mayor,  or  other  proper  authority,  or  on 
process  issued  for  the  purpose,  be  committed  until  such  fine  and 
the  costs  of  prosecution  are  paid,  or  the  party  is  discharged  by 
due  process  of  law.1      [66  v.  168,  §  110;  (S."&  C.  1553).] 

( 1 )    Constitutional. —  Where  act  paid,  unless  the  statute  so  provides, 

authorized  the  arrest  on  execution  Lougee  v.  State,  11  O.  68. 

of  person  against  whom  a  fine  has  Under   a  statute  such  as  this,  it 

been   adjudged,   imprisonment   until  was  held   a   fine  might  be  collected 

fine  is  paid  is  not  unconstitutional.  either  by  commitment  of  person  or 

In  re  Beall,  26  O.  S.  195.  execution      against      his      chattels. 

But  a  court  cannot  impose  a  fine  Huddleson  v.  Ruffin,  6  O.  S.  604. 
and  order  commitment  until  fine  is 


Sec.  1867  R.  S.  [Imprisonment,  where  to  be  made.]  Impris- 
onment under  the  ordinances  of  a  municipal  corporation  shall  be 
in  the  work-house  or  other  jail  of  the  corporation,  if  the  corpora- 
tion is  provided  with  such  work-house  or  a  jail;  and  any  cor- 
poration not  provided  with  a  work-house,  or  other  jail,  shall  be 
allowed,  for  the  purpose  of  imprisonment,  the  use  of  the  jail 
of  the  county,  at  the  expense  of  the  corporation,  until  such, 
corporation  is  provided  with  a  prison,  house  of  correction,  or 
work-house;  and  all  persons  so  imprisoned  in  the  county  jail 
shall  be  under  the  charge  of  the  sheriff  of  the  county,  who  shall 
receive  and  hold  such  persons  in  such  manner  as  may  be  pre- 
scribed by  the  ordinances  of  the  corporation,  until  discharged 
by  due  course  of  law.      [66  /.  168,  §  111 ;  (S.  &  C.  1554).] 

Sec.  1868  R.  S.  [Imprisonment  in  county  jail  may  be  prohib- 
ited.] The  county  commissioners  may,  at  their  discretion,  on 
giving  ninety  days'  written  notice  to  the  council  of  any  corpora- 
tion, prohibit  the  use  of  the  county  jail  for  the  purpose  au- 
thorized in  this  chapter.      [66  v.  168,  §  112;  (S.  &  C.  1554).] 

Sec.  1869  R.  S.  [Limit  of  such  prohibition.]  If,  within 
ninety  days  after  such  notice  is  given,  the  council  of  such  cor- 
poration efficiently  provide,  by  the  passage  of  appropriate  or- 
dinances, and  the  making  of  the  necessary  contracts  for  the 
immediate  erection  of  a  prison,  work-house,  or  house  of  cor- 
rection,  the   corporation    shall   continue,    notwithstanding   the 


592  THE    OHIO    MUNICIPAL    CODE. 

notice  and  prohibition  provided  for  in  the  preceding  section,  to 
have  the  use  of  the  county  jail  for  the  purpose  of  imprison- 
ment, until  such  prison,  workhouse,  or  house  of  correction  is 
erected  and  ready  for  use.  [66  v.  168,  §  113;  (S.  &  C. 
1554).] 

4.     BILLS  OF  EXCEPTIONS. 

Sec.  6565  R.  S.  [Bills  of  exceptions  on  trial  before  justice, 
mayor  or  police  judge;  how  exceptions  taken;  signing,  filing  and 
transmission  to  clerk  of  courts.]  In  all  cases  before  a  jus- 
tice of  the  peace,  mayor  or  police  judge,  whether  tried  by  jury 
or  the  justice,  mayor  or  police  judge,  either  party  shall  have 
the  right  to  except  to  the  decisions  of  the  justice,  mayor  or 
police  judge,  upon  any  matters  of  law  arising  in  the  case.  The 
party  objecting  to  the  decision  must  except  at  the  time  the  de- 
cision is  made  and  time  shall  be  given  to  reduce  the  exception 
to  writing,  but  not  more  than  ten  days  nor  lees  than  five  days 
beyond  the  date  of  overruling  the  motion  for  a  new  trial,  if 
such  motion  be  made,  or  from  the  date  on  which  the  decision 
of  the  justice,  mayor  or  police  judge,  is  rendered ;  when  the 
decision  objected  to  is  entered  on  the  record  and  the  grounds 
of  the  objection  appear  in  the  entry,  the  exception  may  be  taken 
by  the  party  causing  same  to  be  noted  at  the  end  of  the  entry, 
that  he  excepts,  but  when  the  decision  is  not  entered  on  the 
record  or  the  grounds  of  the  objection  do  not  sufficiently  appear 
in  the  entry,  or  exception  is  to  the  decision  of  the  court  on  a 
motion  to  direct  a  nonsuit,  or  to  arrest  the  testimony  from  the 
'jury,  or  for  a  new  trial,  because  the  verdict,  or  if  a  jury  is 
waived  the  finding  of  the  court  is  against  the  law  and  the  evi- 
dence, or  on  the  admission  or  rejection  of  evidence,  the  party 
excepting  must  reduce  this  exception  to  writing  and  present 
the  same  to  the  trial  justice,  mayor  or  police  judge.,  or  his 
successor,  within  the  time  herein  limited,  and  if  the  same 
is  correct  he  shall  sign  said  bill  of  exceptions  and  file  the 
same  with  the  papers  in  the  case,  and  note  such  signing  and 
filing  in  his  docket,  and  transmit  the  same  with  the  transcript 
of  his  docket  and  original  papers,  within  ten  days  of  the  date  of 
such  signing,  to  the  clerk  of  the  court  of  common  pleas  and  by 
him  filed  and  entered  upon  his  trial  docket  as  in  other  cases. 
The  party  demanding  such  transcript  shall,  if  required,  pay 
the  fees  of  the  justice,  mayor  or  police  judge,  therefor  in  ad- 
vance.1 [April  10,  1902;  95  v.  121;  93  v.  104;  90  v.  358;  80 
v.  79,  81;  Rev.  Stat.  1880;  66  v.  7,  §  93;  (S.  &  C.  786).] 

Review  of  judgment  of  mayor  see  Whitman  v.  State,  7  C.  C.  (N. 
upon   issue   raised   by  plea   in   bar,       S.)    334. 


BOARD  OF   HEALTH.  593 


III 
BOARD  OF  HEALTH.1 

Sec.  2117  R.  S.  [Township  board  of  health;  duties  and  powers; 
organization.]  In  each  township  the  trustees  of  the  township 
shall  constitute  a  board  of  health,  which  shall  be  for  the  town- 
ship outside  the  limits  of  any  city  or  village,  and  such  boards 
shall  have  the  same  duties  and  powers  as  are  herein  imposed 
or  granted  to  boards  of  health  in  cities  and  villages.  They 
shall  annually  elect  one  of  their  number  president,  and  the 
township  clerk  shall  be  clerk  of  the  board  of  health ;  they  shall 
appoint  a  health  officer  and  may  appoint  as  many  sanitary 
officers  as  they  deem  necessary  to  carry  out  the  provisions  of 
this  act,  and  define  their  duties  and  fix  their  compensation,  and 
such  appointees  shall  serve  during  the  pleasure  of  the  board. 
Township  boards  of  health  shall  meet  annually  and  at  such 
other  times  as  they  may  deem  necessary.  [1902,  May  7 :  95  v. 
424.] 

(1)   Board   of   health   statutes.  Board    of    Health    under    new 

■ —  For  history  of  sections   and   ex-       Code,    in    cities    and    villages ;    see 
planations  of  those  carried  in  Parts       §  187  et  seq.  of  the  Code,  page  417. 
I.   and  II.,  see  note   1  to    §   187  of 
the  Code,  page  418. 

Sec.  2122 — 1  R.  S.  [Garbage  crematory  in  Columbus.]  The 
boards  of  health  of  cities  of  the  first  grade  of  the  second  class 
be  and  they  are  hereby  authorized  to  erect  and  maintain  gar- 
bage crematories  or  furnaces  and  to  contract  for  a  period  not 
exceeding  ten  years  for  the  removal  and  disposition  of  garbage, 
dead  animals  and  animal  offal,  and  the  councils  of  such  cities, 
in  addition  to  taxation  authorized  to  be  levied  for  other  pur- 
poses, be  and  they  are  hereby  authorized  to  levy  upon  each 
dollar  of  the  taxable  property  of  said  cities,  as  the  same  is  listed 
for  taxation  upon  the  grand  duplicate,  two-fifths  of  a  mill  a 
year  for  one  year,  in  order  to  raise  money  to  build,  equip  and 
maintain  a  garbage  crematory  or  furnace.  Said  tax  shall  be 
collected  as  are  other  taxes,  and  money  arising  therefrom  shall 
constitute  a  separate  fund  to  be  called  the  "  garbage  furnace 


594  THE    OHIO    MUNICIPAL    CODE. 

fund,"  and  shall  be  applied  solely  to  the  purposes  for  which  it 
is  raised.      [89  v.  310.] 

Sec.  2131a.  R.  S.  [Appointment  of  sanitary  police  in  Cleveland; 
specials;  powers,  duties  and  salaries;  removal  of  police  now  in 
office.]  In  all  cities  of  the  second  grade  of  the  first  class,  the 
board  of  health  shall  have  power  to  appoint  as  many  persons 
for  sanitary  duty  as  in  its  opinion  the  public  health  and  sanitary 
condition  of  the  corporation  may  require,  not  exceeding  one  for 
each  ten  thousand  inhabitants,  as  shown  by  the  last  police 
census  in  such  cities;  but  the  board  shall  have  the  power  in 
cases  of  emergency,  to  appoint  as  many  special  sanitary  police 
as  it  may  think  proper,  and  such  appointees  as  special  police 
shall  serve  during  the  pleasure  of  the  board ;  and  all  such  per- 
sons shall  have  general  police  powers,  be  known  as  sanitary 
police,  shall  be  electors  of  such  cities  and  perform  such  duties 
as  the  board  of  health  may  direct;  and  for  such  services  shall 
receive  a  salary,  fixed  by  the  board,  of  not  less  than  seven  hun- 
dred and  eighty  dollars  per  annum.  Provided  that  the  sanitary 
police  now  in  office  shall  not  be  removed  except  in  the  manner 
provided  for  by  section  two  thousand  one  hundred  and  thirty- 
two  (a).      [1888,  March  6:  85  v.  60;  83  v.  115.] 

Sec.  2132a U.S.  [Removals  and  suspensions  generally;  rules 
and  regulations.]  In  all  cities  of  the  second  grade  of  the  first 
class,  the  board  of  health  may,  for  cause  to  be  assigned,  on  a 
public  hearing,  on  due  notice,  and  by  the  vote  of  a  majority  of 
all  members  elected,  according  to  rules  promulgated  by  it, 
remove  or  suspend  from  office,  or  for  any  definite  time  deprive 
from  pay,  any  member  of  such  sanitary  police  force  or  any 
employe  of  such  board ;  and  no  employe  of  such  board  of  health 
shall'  be  dismissed  for  other  reasons ;  it  may  make  rules  and 
regulations  for  the  government  and  discipline  of  the  employes, 
and  cause  the  same  to  be  published.  [1888,  March  6:  85  v. 
60;'  83  v.  115.] 

Sec.  2134 — 1  R.  S.  [Regulation  of  sale  of  ice  for  domestic  pur- 
poses.] No  ice  shall  be  cut  for  the  purpose  of  being  sold 
or  used  for  domestic  purposes  in  any  city  or  village  of  this 
state  from  any  pond,  lake,  creek  or  river  within  the  limits  of 
any  such  city  or  village,  unless  a  permit  therefor  shall  first  be 
obtained  from  the  board  of  health  of  such  city  or  village,  and 
no  person  or  persons  shall  sell  or  deliver  any  ice  in  any  city  or 
village  in  this  state  for  domestic  purposes  without  first  obtain- 
ing a  permit  therefor  from  the  board  of  health  of  such  city  or 
village,  and  it  shall  be  lawful  for  any  such  board  of  health  to 
refuse  a  permit  and  to  revoke  any  granted  by  them,  as  afore* 


BOARD  OF  HEALTH.  595 

-said,  when  in  their  judgment  the  use  of  any  ice  cut  or  sold, 
or  to  be  cut  or  sold,  for  domestic  purposes,  under  the  same  is 
or  would  be  detrimental  to  the  public  health.  [1902,  April 
29:  95  v.  330;  94  v.  370.] 

Sec.  2134 — 2  R.  S.  [Board  of  health  may  prohibit  sale  of  ice  for 
domestic  purposes.]  The  board  of  health  of  any  city  or  vil- 
lage may  prohibit  the  sale  or  use  of  any  ice  for  domestic 
purposes  within  the  limits  of  such  city  or  village  when,  in  their 
judgment  the  same  is  unfit  for  use,  and  the  use  of  the  same 
would  be  detrimental  to  the  public  health  and  the  said  board 
may  prohibit  and  through  its  officers  stop,  detain  and  prevent 
the  bringing  of  any  such  ice  for  the  purpose  of  sale  or  use  for 
domestic  purposes  into  the  limits  of  such  city  or  village,  and 
also  in  the  same  manner  stop,  detain  and  prevent  the  sale  of 
any  such  ice  for  domestic  purposes  within  the  limits  of  such 
city  or  village  when,  in  their  judgment  the  same  is  unfit  for 
use,  and  the  use  of  the  same  would  be  detrimental  to  the  public 
health,  and  the  said  board  may  prohibit  and  through  its  officers 
stop,  detain  and  prevent  the  bringing  of  any  such  ice  for  the 
purpose  of  sale  or  use  for  domestic  purposes  into  the  limits 
of  any  such  city  or  village,  and  also  in  the  same  manner  stop, 
detain  and  prevent  the  sale  of  any  such  ice  for  domestic  pur- 
poses found  within  the  limits  of  such  city  or  village.  [1902 
April  29:  95  v.  330;  94  v.  370.] 

Sec.  2134 — 3  R.  S.  [Penalty.]  Whoever  violates  any  provi- 
sions of  this  act,  or  any  order  or  regulation  of  the  board  of 
health  made  in  pursuance  thereof,  shall  be  fined  in  any  sum 
not  exceeding  one  hundred  dollars.  [19Q2,  April  29:  95  v. 
330 ;  94  v.  371.] 

Sec.  2141 — 1  R.  S.  [Authorizing  the  abolition  of  boards  in  cer- 
tain villages.]  In  all  incorporated  villages  of  this  state,  having 
at  the  last  federal  census,  not  more  than  1,781  inhabitants 
located  in  any  county  containing  a  city  of  the  first  class,  second 
grade,  the  council  may  upon  appointment  of  a  suitable  com- 
mittee from  its  own  members  to  look  after  the  sanitary  affairs 
of  the  said  village,  by  resolution  concurred  in  by  at  least 
three-fourths  of  all  the  members  elected  to  such  council,  de- 
clare the  board  of  health  of  said  village  no  longer  needed  and 
abolish  the  same;  provided  that  nothing  herein  shall,  be  so 
construed  as  to  prevent  the  appointment  of  such  board  of  health 
at  any  time  hereafter  by  the  said  council  whenever  in  their  judg- 
ment the  best  interests  of  the  municipality  demand  [s]  it.  [87 
v.  376.] 


596  THE    OHIO    MUNICIPAL    CODE. 

Sec.  2142a  R.  S.  [Definition  of  "  sanitary  plant."]  The  expres- 
sion  "  sanitary  plant "  as  herein  used,  shall  be  held  to  mean  a 
structure  with  the  necessary  land  and  all  the  necessary  fixtures 
and  appliances  and  appurtenances  required  for  the  treatment 
and  purification  and  disposal,  in  a  sanitary  manner,  of  either 
or  both  the  liquid  or  solid  wastes  of  the  municipality. 

[Plans  and  estimates;  condemnation  of  lands  for  sanitary  plant.] 
Upon  the  recommendation  of  the  board  of  health  of  any  city, 
village  or  hamlet,  or  if  in  any  municipality,  the  powers  usually 
vested  in  a  board  of  health,  have  been  vested  in  any  other  officer 
or  board,  then  upon  the  recommendation  of  such  officer  or 
board,  the  city  council,  legislative  body  or  other  governing 
board,  of  any  municipality,  is  hereby  authorized  to  cause  plans 
and  estimates  to  be  prepared  and  to  acquire  by  condemnation 
or  otherwise  such  land  or  lands  within  or  without  its  corporate 
limits,  as  may  be  necessary  to  provide  for  the  proper  disposal, 
in  a  sanitary  manner,  of  the  sewage  and  the  garbage  and 
waste  matters,  or  either  or  any  of  them  of  the  municipality,  and 
such  council,  legislative  body  or  other  governing  board  of  the 
municipality,  is  hereby  authorized,  upon  first  obtaining  the 
approval  of  the  state  board  of  health,  to  contract  for,  erect  and 
maintain  a  sanitary  plant  or  plants,  on  the  the  land  or  lands 
acquired  under  the  provisions  of  this  act,  together  with  all 
buildings,  machinery,  appliances  and  appurtenances,  necessary 
for  the  disposal,  in  a  sanitary  and  economic  manner,  of  the 
sewage  and  garbage,  night-soil,  dead  animals,  offal,  spoiled 
meats,  and  fish  or  any  putrid  substance,  or  any  liquid  or  solid 
wastes,  or  any  substance  injurious  to  health,  of  the  municipal- 
ity.     [94  v.  343,  383.] 

Sec.  2142b  R.S.  [Collections,  removal  and  disposal  of  garbage, 
night-soil,  etc.]  The  said  council,  legislative  body  or  other 
governing  board,  is  hereby  authorized  to  contract,  for  a  per- 
iod not  exceeding  five  years  for  the  collection  and  removal  and 
disposal  of  such  garbage,  night>soil,  dead  animals  and  other 
solid  waste  substances,  at  the  expense  of  such  municipal  cor- 
poration, or  at  the  expense  of  persons  responsible  for  the  ex- 
istence of  such  waste  substance.      [94  v.  343,  384.] 

Sec.  2142c  R.  S.  [How  funds  raised  for  such  purpose.]  For  the 
purpose  of  carrying  into  effect  the  foregoing  powers,  the  coun- 
cils of  cities,  legislative  bodies  or  governing  boards  of  any 
municipal  corporation  or  township  may  use  any  funds  raised, 
or  heretofore  authorized  in  any  manner  and  necessary  for  said 
purposes,  and  in  case  no  funds  are  available  and  no  bonds  have 
been  heretofore  authorized  for  said  purposes,  and  it  be  neces- 


BOARD  OF   HEALTH.  597 

sary  to  issue  and  sell  bonds  for  said  purposes,  then  the  question 
of  issuing  any  bonds  of  the  municipality  shall  be  submitted  at 
an  election  conducted  therefor  in  conformity  with  provisions 
of  section  2836,  except  that  a  majority  of  the  votes  cast  shall 
be  deemed  sufficient  to  authorize  the  municipal  corporation 
to  issue  said  bonds  under  this  act,  and  the  council  or  other 
legislative  body  shall  not  have  authority  to  issue  the  said  bonds 
unless  a  majority  of  the  qualified  electors  of  such  municipality 
voting  shall  be  in  favor  of  the  proposition  to  issue  said  bonds 
for  said  purposes.      [94  v.  343,  384.] 

Sec.  2142dR.  S.  [Appointment  of  sanitary  board.]  Before 
submitting  said  proposition  to  a  vote  of  the  people,  the  city 
council,  or  other  legislative  body  of  said  municipal  corporation 
may  by  resolution  determine  to  have  all  the  work  in  connection 
with  the  erection  and  maintenance  of  said  sanitary  plant  and 
the  acquisition  of  the  necessary  real  estate  therefor,  put  under 
the  control  of  a  sanitary  board,  which  shall  be  appointed  before 
the  vote  is  taken. 

[Constitution  of  board;  how  appointed;  term.]  Said  board 
shall  consist  of  two  citizens  from  each  of  the  two  political 
parties  casting  the  highest  vote  at  the  last  preceding  municipal 
election,  who  shall  be  appointed  by  the  mayor  by  and  with  the 
consent  and  approval  of  the  city  council,  or  other  legislative 
body  of  said  municipal  corporation,  and  shall  serve  for  a  term 
of  two  years  and  until  their  successors  are  duly  appointed. 

[Compensation  and  powers  of  board.]  Said  boards  shall  have 
such  reasonable  compensation  as  the  city  council  or  other  legis- 
lative [body]  of  said  municipal  corporation  may  prescribe, 
and  shall  have  entire  control  of  the  erection  and  maintenance  of 
said  sanitary  plant  and  the  purchase  of  the  necessary  real  estate 
therefor  on  behalf  of  said  municipal  corporation  and  may,  in 
its  discretion,  modify  said  original  plans  and  specifications, 
subject  however  to  the  approval  of  the  state  board  of  health,  and 
provided,  that  the  total  cost  thereof  shall  not  exceed  the  original 
estimate.      [94  v.  344,  384.] 

Sec.  2142e  R.  S.  [Levy  for  sanitary  fund.]  For  the  purpose 
of  providing  a  fund  for  the  payment  of  the  principal  and  in- 
terest of  the  bonds  issued  under  this  act,  and  of  maintaining 
said  sanitary  plant  or  plants,  said  city  council  or  other  legisla- 
tive body  shall,  in  addition  to  the  other  levies  authorized  by 
law,  levy  annually  a  sufficient  tax  therefor  on  all  the  property 
subject  to  taxation  in  said  municipal  corporation  and  such  taxes 
shall  be  levied  and  collected  in  the  same  manner  as  other  taxes; 
and  the  proceeds  thereof  shall  constitute  the  iC  sanitary  fund  " 


598  THE    OHIO    MUNICIPAL    CODE. 

of  said  municipal  corporation,  and  shall  be  held  like  other 
funds  of  said  municipal  corporation  subject  only  to  the  written 
order  of  said  city  council  or  other  legislative  body,  or  governing 
or  sanitary  board  of  said  municipal  corporation  which  shall 
have  control  of  said  work.      [94  v.  344,  385.] 

Sec.  2142e — 1 R.  S.  Sanitary  board  in  cities  second  class 
fourth  grade,  may  be  appointed,  when;  Question  to  be  submitted 
to  voters.]  §  1.  Whenever  the  state  board  of  health  declare 
it  necessary  for  any  city  of  the  fourth  grade  of  the  second 
class  to  adopt  measures  for  the  relief  and  improvement  of  its 
sanitary  condition,  by  the  proper  disposal  of  its  sewage  or 
garbage,  or  both,  the  city  council  of  said  city  may,  by  resolution, 
authorize  the  establishment  of  a  "  sanitary  board "  for  the 
purpose  of  constructing,  operating  and  maintaing  a  "  sanitary 
plant "  for  the  proper  disposal  of  the  sewage  or  garbage,  or 
both,  of  said  city  in  the  manner  hereinafter  provided;  and 
the  provisions  of  section  2142  1  of  the  Revised  Statutes  of  Ohio 
shall  not  apply  to  any  city  which  provides  itself  with  a  "  san- 
itary plant "  in  accordance  with  the  provisions  of  this  act. 

(1)    Section   referred   to.— The  2142  R.   S.,  repealed  in  95  v.  421. 

section  in  the  amendments  in  95  v.  See  note   (1)   to  §  187  of  the  Code, 

421,  numbered  §   2142,  does  not  re-  page  418. 
late   to  the  same  subject  as  old   § 

[Question  to  be  submitted  to  voters.]  Provided,  however, 
that  the  within  act  is  not  to  take  effect  or  become  in  any  way 
operative  until  the  same  is  submitted  to  the  qualified  electors 
of  said  city  of  the  second  class  of  the  fourth  grade,  at  some  gen- 
eral or  special  election  after  due  notice  has  been  given  as 
provided  by  law  and  a  majority  of  said  electors  voting  on  said 
proposition  voting  in  favor  of  same.      [94  v.  71.] 

Sec.  2142e — 2  R.  S.   [Duties,  etc.,  of  sanitary  board.]   §  2.  Part  1. 

The  sanitary  board  shall  consist  of  four  electors  who  shall  be 
citizens  of  said  city,  two  of  whom  shall  be  chosen  from  each 
of  the  two  political  parties  casting  the  largest  number  of  votes 
at  the  last  preceding  municipal  election ;  they  shall  be  appointed 
by  the  mayor,  by  and  with  the  consent  of  the  city  council  and 
shall  serve  for  such  compensation  as  the  city  council  may  allow, 
which  shall  be  not  less  than  twenty-five  dollars  ($25.00)  nor 
more  than  one  hundred  dollars  ($100.00)  each  per  annum; 
their  term  of  office  shall  be  two  years,  except  that  the  mayor 
may  designate  two  of  the  first  appointees  to  serve  for  one  year 
only 


BOARD  OF  HEALTH.  599 

Part  2.  [Board  to  adopt  plan.]  Said  board  shall  prepare 
and  adopt  plans  for  the  disposal  of  the  sewage  or  garbage,  or 
both,  of  said  city,  and  procure  the  approval  thereof  by  the  state 
board  of  health. 

Part  3.  [Approval  of  city  council.]  Said  plan  shall  thereup- 
on be  reported  to  the  city  council  of  said  city  with  estimated 
cost  of  executing  the  same,  and  when  approved  by  the  city 
council,  shall  thereupon  be  certified  back  to  said  sanitary  board, 
who  shall  thereafter  have  exclusive  control  of  the  erection  and 
maintenance  of  said  sanitary  plant  on  behalf  of  the  said  city. 

Part  4.  [Where  council  has  prepared  plans  previous  to  ap- 
pointment of  sanitary  board.]  Provided,  however,  that  in  case 
the  city  council  of  any  such  city  shall  have  had  the  plans  for 
a  sanitary  plant  prepared,  and  approved  by  the  state  board  of 
health  prior  to  the  appointment  of  a  sanitary  board  as  provided 
in  this  act,  the  sanitary  board  thereafter  appointed  may,  upon 
notice  and  request  from  the  city  council,  proceed  to  carry  said 
plans  into  execution  as  hereinafter  provided,  and  shall  have 
entire  charge  and  control  thereof  the  same  as  if  prepared  by  it ; 
and  out  of  the  sanitary  construction  fund  the  sanitary  board 
shall  refund  to  the  city  any  and  all  expense  incurred  by  the 
city  in  procuring  and  perfecting  said  plans. 

Part  5.  [Board  shall  advertise  for  bids.]  When  said  plans 
have  been  adopted  or  approved  by  the  city  council  as  heretofore 
provided,  the  said  sanitary  board  shall  at  once  proceed  to  ad- 
vertise for  bids  and  execute  contracts  in  the  name  of  the  city 
for  which  the  work,  subject  to  the  same  regulations  and  re- 
strictions as  provided  in  section  2303  1  of  the  Revised  Statutes 
of  Ohio,  provided  that  the  sanitary  board  shall  have  the  entire 
control  of  the  advertising  for  bids  and  letting  of  all  contracts, 
instead  of  the  various  city  officers  named  in  said  section  2303 ; 
provided,  however,  that  the  said  sanitary  board  may,  by  and 
with  the  consent  of  ihe  city  council  of  said  city,  after  it  has 
duly  advertised  for  bids  for  any  part  of  said  plant  and  has 
failed  to  receive  any  reasonable  and  satisfactory  bid  therefor, 
proceed  to  buy  the  necessary  materials  and  construct  any  such 
part  or  parts  of  said  sanitary  plant  under  the  immediate  super- 
vision of  its  engineer  and  managing  officers. 

(1)  §  2303  R.  S.  repealed  by  the  see  note  (1)  to  §  143  of  the  Code, 
Code.     See  §  50  et  seq.  of  Code;  and      page  371. 

Part.  6.  [Powers.]  Said  sanitary  board  may,  in  order  to 
carry  out  the  provisions  of  this  act,  employ  officers  and  the 
requisite  expert  and  professional  assistants,  purchase  materials, 


600  THE    OHIO    MUNICIPAL    CODE. 

employ  laborers,  erect  buildings,  purchase  and  lease  real  estate 
in  the  name  of  said  city,  either  within  or  without  its  corporate 
limits,  and  if  necessary,  to  appropriate  the  same,  it  shall  pro- 
ceed in  the  manner  and  form  provided  in  chapter  three,  division 
seven,  title  twelve  of  the  Revised  Statutes  of  Ohio.1 

(1)   This   chapter   is    now  super  seded  by  §§  10  to  22  of  the  Code. 

Part  7.  [Money  shall  be  paid  out  only  on  orders.]  No  money 
shall  be  paid  out  of  the  sanitary  fund  of  said  city  except  upon 
the  written  order  of  the  sanitary  board,  signed  by  its  president 
and  attested  by  its  secretary  or  clerk. 

Part  8.  [Quarterly  report  to  council.]  Said  sanitary  board 
shall  keep  a  record  of  all  its.  meetings  and  of  all  orders  issued  on 
the  sanitary  funds  of  said  city;  a  report  of  its  receipts  and 
expenditures  shall  be  made  to  council  every  three  months,  or 
as  often  as  required  by  council ;  the  "  aye  "  and  "  nay  "  vote 
shall  be  taken  and  recorded  on  every  resolution  involving  the 
expenditure  of  money  Or  entering  into  a  contract.      [94  v.  72.] 

Sec.  2142e — 3  R.  S.  [Change  of  watercourses.]  §  3.  The  sani- 
tary board  of  said  city  is  authorized  if,  in  their  judgment,  it  be- 
comes necessary  so  to  do  in  the  interest  of  the  health  of  said  city, 
and  the  operation  of  a  sanitary  plant,  to  change  the  channel  of 
any  unnavigable  watercourse  outside,  as  well  as  inside,  the  cor- 
porate limits  of  said  city,  by  deepening,  widening  and  straight- 
ening the  same,  and  removing  or  altering  any  and  all  dams  or 
other  obstructions  in  said  channel;  provided,  that  in  making 
this  improvement,  they  first  procure  the  approval  of  the  plans 
by  the  state  board  of  health  and  then  proceed  in  the  manner 
prescribed  by  section  2304  1  of  the  Revised  Statutes  of  Ohio, 
regulating  the  procedure  of  city  councils  in  making  public 
improvements  within  their  respective  cities; 

( 1 )      §    2304   R.    S.   repealed   by  new  Code.    See  §  50  et  seq.  of  Code. 

[Claims  for  damages.]  and  all  claims  for  damages  against 
said  municipal  corporation  growing  out  of  said  proposed  im- 
provement shall  be  filed  and  the  rights  of  all  parties  determined 
by  the  city  council  as  provided  in  subdivision  2  of  chapter  4, 
division  7,  title  12  of  the  Revised  Statutes  of  Ohio;1  pro- 
vided, however,  that  immediately  upon  the  filing  of  any  such 
claim  with  the  city  clerk,  the  same  shall  be  certified  by  him  to 
the  sanitary  board  and  if  the  same  shall  not  have  been  settled 
and  discharged  by  the  said  sanitary  board  within  sixty  days 
from  the  date  of  filing,  it  shall  be  returned  to  said  city  clerl: 


BOARD  OF  HEALTH.  G01 

and  acted  -upon  by  said  council  of  said  city  like  other  claims  for 
damages  arising  out  of  improvements  in  said  city ;  and  any 
judgment  recovered  against  said  city  on  any  such  claim  shali 
be  paid  out  of  the  sanitary  construction  fund  of  said  city,  and 
the  said  sanitary  board  may,  upon  its  written  request  to  the 
city  council  of  said  city,  take  entire  control  and  supervision  of 
litigation  growing  out  of  said  claims;  and  no  suit  shall  be 
brought  against  the  city  on  [any]  such  claim  until  one  hundred 
and  twenty  (120)  days  shall  have  elapsed  from  the  filing  there- 
of.     [94  v.  73.] 

(1)  See  §§  54  to  58  inclusive,  and  §  94  of  the  Code. 

Sec.  2142e— 4R.  S.  [To  sell  bonds,  etc.]  §  4.  The  city  coun- 
cil of  any  city  which  has  approved  the  plans  for  a  sanitary  plant 
as  provided  in  section  2  of  this  act,  or  the  changing  [of]  the 
channel  or  removal  of  obstructions  in  any  watercourse  as  pro- 
vided in  section  3  of  this  act,  is  hereby  authorized  to,  and 
must,  upon  the  written  request  of  the  sanitary  board,  proceed 
to  issue  and  sell  bonds  of  said  city  in  the  amount  so  requested 
by  said  sanitary  board  from  time  to  time,  as  the  work  progresses, 
which  shall  not,  in  the  aggregate,  exceed  the  estimated  cost  of 
the  said  sanitary  plant,  and  change  or  removal  of  obstructions 
from  any  watercourse,  which  bonds  shall  be  entitled  "  sanitary 
construction  bonds  "  and  shall  bear  interest  not  exceeding  six 
per  cent,  per  annum,  payable  semi-annually,  and  of  denom- 
inations of  not  more  than  one  thousand  dollars  ($1,000.00) 
nor  less  than  one  hundred  dollars  ($100.00)  each,  made  payable 
at  such  times  as  said  council  may,  by  resolution,  prescribe,  but 
not  to  exceed  fifteen  (15)  years  from  date  of  issue.  Said 
bonds  shall  not  be  sold  for  less  than  par,  and  the  proceeds 
thereof  shall  be  paid  to  the  city  treasurer  and  shall  constitute  a 
special  fund  to  be  known  as  the  "  sanitary  construction  fund," 
which  shall  be  subject  only  to  the  orders  of  the  sanitary  board 
and  shall  be  used  for  the  purpose  of  acquiring  the  necessary 
real  estate  and  constructing  a  sanitary  plant  with  its  appurte- 
nances as  provided  by  this  act. 

Said  sanitary  boards  shall  conform  to  the  requirements  of 
chapter  2,  division  9,  title  12  of  the  Revised  Statutes  of  Ohio,1 
except  as  the  provisions  of  said  chapter  have  been  modified  in 
this  section.      [94  v.  74.] 

(1)     Chapter    referred    to. —  §§  2,    referred    to,    is   repealed    by   the 

2701,    2703,    2706,    2707,    2708    are  Code.     See   §§  95  to  100,  inclusive, 

re-enacted  in  §  96  of  Code.     §  2709  of  the  Code,  for  present  provisions 

as    amended     (95    v.    507)     is    not  on  the  subject, 
repealed;    the  remainder  of  chapter 


602  THE    OHIO    MUNICIPAL     CODE. 

Sec.  2142e — 5  It.  S.  [Sanitary  extension.]  §5.  Whenever  it 
is  deemed  necessary  by  the  state  board  of  health  and  the  sanitary 
board  of  any  such  city  which  has  built  a  sanitary  plant  or 
changed  a  channel  on  account  of  obstructions  in  any  water- 
course, and  appointed  a  sanitary  board  under  the  provisions 
of  this  act,  to  enlarge  or  extend  the  sanitary  plant  to  provide 
for  the  increased  demands  of  said  city,  the  sanitary  board  may 
prepare  plans  for  the  same,  which,  when  approved  by  the 
state  board  of  health,  shall  be  submitted  to  the  city  council, 
together  with  an  estimate  of  the  cost  of  executing  the  same, 
and  the  same  proceedings  shall  be  had  thereon  as  are  herein 
provided  in  sections  2,  3  and  5  of  this  act,  for  the  original 
construction  of  a  sanitary  plant  and  subject  to  the  same  con- 
trol by  the  sanitary  board  of  said  city,  except  that  the  fund  aris- 
ing from  the  sale  of  the  bonds  to  enlarge  or  extend  a  sanitary 
plant,  shall  be  denominated  "  sanitary  extension  fund "  and 
shall  be  used  for  no  other  purpose;  and  the  bonds  sold  to 
raise  said  fund  shall  be  denominated  "  sanitary  extension 
bonds;"  provided,  however,  no  sanitary  extension  bonds  shall 
be  sold  by  any  such  city  until  at  least  five  years  have  elapsed 
since  the  last  preceding  "  sanitary  bonds "  have  been  issued 
and  sold.      [94  v.  74.] 

Sec.  2142e— -6  R.  S.  [The  tax.]  §  6.  For  the  purpose  of  pro- 
viding a  fund  for  the  payment  of  the  principal  of  said  sanitary 
construction  bonds  and  sanitary  extension  bonds  respectively,  at 
maturity,  and  of  paying  the  interest  on  said  bonds,  said  coun- 
cil shall,  in  addition  to  the  other  levies  authorized  by  law,  levy 
annually  a  sufficient  tax  on  all  the  property  subject  to  taxation 
in  said  city,  and  such  taxes  shall  be  levied  and  collected  in 
the  same  manner  as  other  taxes ;  and  the  proceeds  thereof  shall 
constitute  the  "  sanitary  construction  fund  "  and  the  "  sanitary 
extension  fund  "  respectively,  of  said  city,  and  shall  be  held  by 
the  city  treasurer  like  other  city  funds,  subject  only  to  the 
written  order  of  the  sanitary  board  of  said  city,  as  hereinbefore 
provided.      [94  v.  75.] 

Sec.  2142e— 7  R.  S.  [Maintenance.]  §  7.  For  the  operation, 
repair  and  maintenance  of  said  plant,  erected  under  the  provi- 
sions of  sections  2  and  3  of  this  act,  the  city  council  of  said 
city  is  hereby  authorized  and  directed  to  levy  a  tax,  annually, 
not  exceeding  one-half  mill  per  annum,  on  every  dollar  of 
taxable  property,  both  real  and  personal,  listed  for  taxation  in 
said  city,  in  addition  to  the  amount  otherwise  authorized  by 
law,  to  be  collected  like  other  taxes,  and  to  be  used  for  no  other 
purpose ;  the  proceeds  of  said  tax  shall  constitute  the  "  sanitary 


BOARD  OF  HEALTH.V^'  TORN\]^^    603 


maintenance  fund"  and  shall  be  held  by  the  city  treasurer 
like  other  city  funds,  subject  only  to  the  written  order  of  the 
sanitary  board  of  said  city.  In  order  to  determine  the  amount 
of  said  levy,  the  sanitary  board  of  said  city  shall,  on  or  before 
the  first  day  of  April  of  each  year,  submit  to  the  city  council, 
in  writing,  an  estimate  of  the  probable  expenses  of  operating, 
repairing  and  maintaining  said  sanitary  plant  for  one  year, 
and  said  city  council  shall  thereupon  levy  a  sufficient  tax 
to  produce  said  funds,  subject  to  the  limitations  hereinbefore 
contained.      [94  v.  75.] 

An  act  to  provide  for  the  cost  of  collecting,  removing  and  dispos- 
ing of  garbage,  dead  animals  and  animal  offal  where  provision 
could  not  be  made  therefor. 

[Sec.  1.]  ["  Garbage  bonds;"  when  municipality  may  issue;  tax 
levy.]  In  any  municipality  which  has  heretofore  entered  into 
any  contract  for  the  collection,  removal  and  disposal  of  garbage, 
dead  animals,  and  animal  offal,  after  the  date  fixed  for  making 
provision  for  the  expenditures  arising  thereunder  during  the 
year  in  which  any  such  contract  goes  into  operation,  and  where 
such  provision  was  not  in  fact  made,  the  board  of  public  service, 
if  there  be  such  a  board,  or  its  successor,  and  if  there  be  no  such 
board,  the  council  or  trustees  of  any  such  municipality,  is  here- 
by authorized  to  issue  bonds,  in  the  name  of  such  municipality, 
in  an  aggregate  amount  not  exceeding  thirty-seven  thousand 
three  hundred  and  fifty  dollars,  to  meet  the  expenditures  esti- 
mated to  be  incurred  under  such  contract,  during  the  year  for 
which  no  provision  was  made  as  aforesaid.  In  anticipation  of 
the  funds  arising  from  the  sale  of  such  bonds,  it  shall  be  lawful 
for  any  such  municipality,  by  its  proper  officer  and  boards  to 
make  an  estimate  of  the  money  needed  to  meet  its  obligations, 
arising  under  such '  contract,  for  such  year  or  part  thereof,  and 
to  provide  for  their  payment,  in  the  manner  prescribed  by  law, 
out  of  the  proceeds  arising  from  the  sale  of  any  such  bonds. 
Said  bonds  shall  be  of  such  denomination  as  the  issuing  board 
may  determine,  be  made  payable  in  not  less  than  twenty  years 
nor  more  than  thirty  years  from  the  date  of  their  issue,  and 
shall  bear  interest  at  a  rate  not  exceeding  3%  per  cent,  per 
annum,  and  they  shall  be  designated  as  "  garbage  bonds." 
They  shall  be  signed,  sealed  and  sold  in  the  manner  and  subject 
to  the  conditions  prescribed  by  law,  and  shall  be  secured  by  the 
pledge  of  the  faith  of  the  municipality  and  a  tax,  which  it  is 
hereby  made  the  duty  of  its  legislative  board  to  levy,  annually, 
upon  all  the  taxable  property  within  the  municipality,  sufficient 
in  amount  to  pay  the  interest  of  the  bonds  annually,  and  to 


604  THE    OHIO    MUNICIPAL    CODE. 

provide  a  sinking  fund  to  redeem  them  at  maturity,  and  such 
tax  may  be  in  addition  to  the  amount  now  authorized  by  law  to 
be  levied  for  municipal  purposes.  In  municipalities  which 
have  a  board  designated  as  the  trustees  of  the  sinking  fund,  the 
rate  of  tax  to  be  levied  as  above,  shall  be  fixed  and  certified  by 
such  board.      [May  10,  1902,  95  v.  477.] 

Sec.  409 — 26  R.  S.  [Powers  of  Cincinnati  board  of  administra- 
tion as  to  sewerage.]  Iu  cities  of  the  first  grade  of  the  first 
class,  the  duly  constituted  authorities,  as  provided  by  law,  shall 
have  authority  and  control  in  introducing  a  system  of  sewerage, 
and  in  locating,  constructing  and  extending  all  sewers  withii? 
the  limits  of  any  such  city,  whether  the  same  be  for  general  sew- 
erage or  for  surface  water  only,  and  for  such  purpose  may  con^ 
demn  the  necessary  right  for  an  outlet  or  extension  of  sewer? 
beyond  the  limits  of  the  city;  and  whenever  any  sewer  or  sys- 
tem of  sewers  has  an  outlet  into  any  stream,  above  the  intake 
of  any  water  works  system,  drawing  water  from  such  stream, 
the  board  of  administration  of  such  cities  shall  have  power 
and  authority  to  prohibit  any  connection  with  such  sewer  or 
system  of  sewers,  for  any  other  purpose  than  for  draining  sur- 
face water  therein ;  provided,  however,  that  nothing  in  this  act 
shall  be  held  to  abridge  or  in  any  way  to  interfere  with  the 
authority  now  vested  by  law  in  the  state  board  of  health.  [92 
v.  759.] 

Sec.  409 — 28  It.  S.  [Local  reports  to  state  board  of  existence  of 
contagions  or  infectious  diseases;  in  case  of  epidemic,  sanitary 
officer  may  be  appointed  to  enforce  orders.]  It  shall  be  the  duty 
of  the  boards  of  health,  health  authorities  or  officials,  and  of 
physicians  in  localities  where  there  are  no  health  authorities  or 
officials,  to  report  to  the  state  board  of  health,  promptly  upon 
the  discovery  thereof,  the  existence  of  any  one  of  the  following 
diseases  which  may  come  under  their  observation,  to-wit : 

Asiatic  cholera,  yellow  fever,  smallpox,  scarlet  fever,  diph- 
theria, membranous  croup,  typhus  or  typhoid  fever,  and  of  such 
other  contagious  or  infectious  diseases  as  the  state  board  of 
health  may  from  time  to  time  specify.  And  when  any  con- 
tagious or  infectious  disease  shall  become  or  threaten  to  be- 
come epidemic  in  any  city,  village,  hamlet  or  township,  and 
the  local  authorities  shall  neglect  or  refuse  to  enforce  efficient 
measures  for  its  prevention,  the  state  board  of  health,  or  the 
secretary  as  its  executive  officer,  on  the  order  of  the  president 
of  said  board,  may  appoint  a  medical  or  sanitary  officer  and 
such  assistants  as  he  may  require,  and  authorize  him  to  enforce 
such  orders  or  regulations  as  said  board  or  its  executive  officer 
may  deem  necessary.      [1902,  May  7 :  95  v.  421.] 


BOARD  OF   HEALTH.  604a 

[An  act  to  provide  for  annual  conferences  of  health  officers.] 

[Sec.  1.]  [Provision  for  annual  conferences  of  health  offi- 
cers.] That  the  state  board  of  health  may  make  suitable  pro- 
vision for  annual  conferences  of  health  officers  and  represen- 
tatives of  local  boards  of  health  for  the  consideration  of  the 
cause  and  prevention  of  dangerous  communicable  diseases  and 
of  other  measures  to  protect  and  improve  the  public  health. 
And  it  shall  be  the  duty  of  the  board  of  health  or  other  body 
or  person  appointed  or  acting  in  lieu  of  a  board  of  health  to 
appoint  one  delegate  to  such  annual  conferences,  and  the  actual 
necessary  expenses  of  such  delegate  in  attendance  at  such 
meetings  shall  be  provided  for  and  paid  by  the  city,  village  or 
township  which  he  is  appointed  to  represent,  provided  he  pro- 
cures a  certificate  from  the  secretary  of  the  state  board  of 
health  that  he  was  in  actual  attendance  at  the  sessions  of  such 
conferences. 

The  state  board  of  health  may  provide  for  one  annual  con- 
ference of  representatives  of  city  boards  of  health,  another 
for  representatives  of  village  boards  of  health,  and  one  or 
more  for  representatives  of  township  boards  of  health,  or  make 
such  other  division  of  conferences  as  it  may  deem  best,  but  no 
meeting  shall  continue  longer  than  three  consecutive  days  and 
no  board  of  health  shall  be  required  or  authorized  to  send  a 
delegate  to  more  than  one  conference  in  any  one  year.  [1906, 
April  16,  98  v.  205.] 

Sec.  6923  R.  S.  [Unlawful  deposit  of  dead  animals,  offal, 
etc.,  in  or  upon  land  or  water.]  Whoever  puts  the  carcass  of 
any  dead  animal,  or  the  offal  from  any  slaughter  house,  or 
butcher's  establishment,  packing  house,  or  fish  house,  or  any 
spoiled  meat,  or  spoiled  fish,  or  any  putrid  substance,  or  the 
contents  of  any  privy  vaults,  upon  or  into  any  lake,  river,  bay, 
creek,  pond,  canal,  road,  street,  alley,  lot,  field,  meadow,  public 
ground,  market  space  or  common,  and  whoever  being  the 
owner  or  occupant  of  any  such  place,  knowingly  permits  any 
such  thing  to  remain  therein,  to  the  annoyance  of  any  of  the 
citizens  of  this  state,  neglects  or  refuses  to  remove  or  abate 
the  nuisance  occasioned  thereby,  within  twenty-four  hours 
after  knowledge  of  the  existence  of  such  nuisance  upon  any 
of  the  above  described  premises,  owned  or  occupied  by  him, 
or  after  notice  thereof  in  writing,  from  any  road  superintend- 
ent, constable,  trustee,  or  health  officer  of  any  municipal 
corporation  or  township  in  which  such  nuisance  exists,  or 
from  a  county  commissioner  of  such  county,  shall  be  fined  not 


604&  THE    OHIO    MUNICIPAL    CODE. 

more  than  fifty  dollars  nor  less  than  ten  dollars,  and  pay  the 
cost  of  prosecution,  and  in  default  of  the  payment  of  said  fine 
and  cost,  be  imprisoned  not  more  than  thirty  days,  but  the  pro- 
visions hereinbefore  made  shall  not  prohibit  the  depositing  of 
the  contents  of  privy  vaults  and  catch  basins  into  trenches  or 
pits  not  less  than  three  (3)  feet  deep,  excavated  in  any  lot,  field 
or  meadow,  the  owner  thereof  consenting,  outside  the  limits  of 
any  municipal  corporation,  and  not  less  than  thirty  rods  dis- 
tant from  any  dwelling,  well  or  spring  of  water,  lake,  bay  or 
pond,  canal,  run,  creek,  brook  or  stream  of  water,  public  road 
or  highway;  provided,  that  said  contents  deposited  in  said 
trenches  or  pits  are  immediately  thereafter  covered  with  dry 
earth  to  the  depth  of  at  least  twelve  inches;  nor  shall  said 
provisions  prohibit  the  depositing  of  said  contents  into  fur- 
rows situate  and  distinct,  as  specified  for  said  trenches  or  pits; 
provided,  the  same  are  immediately  thereafter  wholly  covered 
with  dry  earth  by  plowing  or  otherwise;  and,  provided,  also, 
that  the  owner  or  occupant  of  the  land  in  which  said  furrows 
are  plowed  consents,  and  is  a  party  thereto ;  provided,  also, 
that  the  board  of  health  of  any  municipal  corporation  may 
allow  said  contents  to  be  deposited  within  corporate  limits  into 
trenches  or  pits  or  furrows,  situate,  distant  and  to  be  covered 
as  aforesaid. 

[Dayton.]  Provided,  further,  that  in  cities  of  the  second 
grade  of  the  second  class  having  and  maintaining  a  crema- 
tory, the  contents  of  privy  vaults  in  said  cities  and  towns  shall 
be  deposited  at  said  crematory,  and  whoever  shall  haul  away 
and  deposit  the  contents  of  any  such  privy  vault,  in  any  such 
municipal  corporation,  at  any  other  place  than  at  such  crema- 
tory, shall  be  fined  not  more  than  fifty  dollars  nor  less  than 
ten  dollars,  and  pay  the  cost  of  prosecution,  and  in  default 
of  the  payment  of  said  fine  and  costs,  be  imprisoned  not  more 
than  thirty  days.  [1906,  April  16,  98  v.  329;  93  v.  298;  87  v. 
349;  85  v.  268;  63  v.  102;  30  v.  22.] 


CHARITABLE   AND  REFORMATORY   INSTITUTIONS.  605 


IV 

CHARITABLE  AND  REFORMATORY 
INSTITUTIONS;  SOLDIERS'  RELIEF. 

1.  GEKEKAL  PKOVISIONS. 

Sec,  633 — 11  It.  S.  [All  institutions  open  to  inspection  of 
county  commissioners  or  board  of  health.]  Every  private  or  pub- 
lic hospital,  reformatory  home,  house  of  detention,  private 
asylum,  and  any  institution  exercising  or  pretending  to  exer- 
cise a  reformatory  or  correctional  influence  over  individuals  in 
the  state  of  Ohio,  shall  be  open  at  any  and  all  times  for  the  in- 
spection of  the  commissioners  of  the  county  in  which  any  such 
institution  is  situated,  or  the  board  of  health  of  the  township,  or 
other  municipality  in  which  any  such  institution  is  situated. 
[92  v.  212.] 

Sec.  633 — 14  It.  S.  [Penalty  for  denying  or  obstructing  investi- 
gations.] Any  official,  agent,  or  employe,  or  other  person  re- 
fusing to  permit  or  in  any  manner  interfering  with  the  inspec- 
tion of  any  such  public  or  private  hospital,  reformatory  home, 
house  of  detention,  private  asylum,  or  any  institution  exercising 
or  pretending  to  exercise  a  reformatory  or  correctional  influence 
over  individuals,  by  the  county  commissioners  of  the  county  in 
which  such  institution,  or  institutions,  are  situated,  or  by  the 
board  of  health,  of  the  municipality  in  which  the  same  is  sit- 
uated, shall  be  deemed  guilty  of  a  misdemeanor,  and  shall, 
upon  conviction  thereof,  be  punished  by  a  line  of  not  less  than 
twenty-five  (25)  dollars,  or  six  months'  imprisonment,  or  both, 
and  for  each  subsequent  offense  a  fine  of  not  less  than  one  hun- 
dred (100)  dollars,  and  six  months'  imprisonment.  [92  v. 
212.] 

Sec.  633—15  R.  S.  [Board  of  county  visitors;  appointment, 
qualifications,  term,  compensation,  vacancies.]  The  judge  of 
probate  court  in  all  counties  shall  between  the  first  day  of 
March  and  the  first  day  of  April  appoint  six  persons,  three  of 
whom  shall  be  women,  and  not  more  than  three  of  whom 
shall  have  the  same  political  affiliations,  two  of  whom,  as  in- 
dicated by  the  appointing  judge,  upon  the  fixed  appointment, 
shall  serve  for  one  year,  two  for  two  years,  and  two  for  three 
years,  beginning  the  first  day  of  May,  who  shall  constitute  a 
board  of  county  visitors  for  the  inspection  of  all  charitable 


606  THE     OHIO     MUNICIPAL     CODE. 

and  correctional  institutions  supported  in  whole  or  in  part 
from  the  county  or  municipal  funds.  All  vacancies  in  the 
board,  whether  occasioned  by  expiration  of  term,  removal  or 
otherwise,  shall  be  filled  in  the  manner  that  the  original  ap- 
pointment is  made  and,  when  occurring  at  any  time  before 
the  expiration  of  the  term  of  appointment,  shall  be  for  the 
balance  of  the  term  only.  A  certificate  of  appointment  shall 
be  issued  to  all  persons  appointed  and  a  copy,  giving  full 
names  and  addresses,  shall  be  sent  to  the  board  of  state  chari- 
ties at  Columbus.  No  person  shall  be  qualified  to  serve  on 
this  board  who  is  in  any  manner  officially  connected  with  any 
charitable  or  correctional  institution  within  the  county  sup- 
ported wholly  or  partly  at  public  expense.  Said  board  of 
county  visitors  shall  serve  without  compensation,  but  actual 
expenses  incurred  in  the  discharge  of  its  duties  and  actual 
necessary  expense  incurred  by  any  member  or  members  to  be 
selected  by  said  board  in  visiting  any  other  charitable  or  cor- 
rectional institution  for  the  purpose  of  information  and  at- 
tendance upon  any  convention  or  meeting  held  within  the 
state  of  Ohio  in  the  interest  of  and  to  deliberate  upon  chari- 
table or  correctional  methods  and  work  to  an  amount  not  ex- 
ceeding one  hundred  dollars  ($100.00)  per  annum  shall  be 
allowed  by  the  county  commissioners,  and  the  county  auditor 
shall  issue  a  warrant  for  the  amount  which  shall  be  paid  by 
the  county  treasurer,  provided  that  the  judge  of  the  probate 
court  has  issued  a  certificate  that  the  members  of  the  board 
have  satisfactorily  performed  their  duties  as  provided  in  sub- 
sequent sections.  [98  v.  28;  94  v.  70;  93  v.  57;  89  v.  161; 
79  v.  107.] 

Sec.  633—16  R.  S.  [Duties  of  board  of  visitors.]  It  shall 
be  the  duty  of  such  board  of  visitors,  by  personal  visitation 
or  otherwise,  to  keep  themselves  fully  advised  of  the  condition 
and  management  of  all  charitable  or  corrective  institutions 
supported  in  whole  or  in  part  by  county  or  municipal  taxation, 
or  which  are  under  county  or  municipal  control,  and  especially 
the  infirmary,  county  jail,  municipal  prisons,  and  children's 
home;  and  from  time  to  time  they  shall  recommend  to  the 
county  commissioners  and  to  other  officials  responsible  there- 
for such  changes  and  additional  provisions  as  they  may  deem 
essential  for  their  economical  and  efficient  administration,  and 
at  least  once  in  every  three  months  all  of  said  institutions 
shall  be  visited  by  said  board,  or  a  committee  of  its  members. 
Failure  in  the  performance  of  these  duties  on  the  part  of  any 
member  of  this  board  for  one  year  shall  be  sufficient  cause 
for  his  or  her  removal  by  the  judge  of  the  probate  court. 
[98  v.  28;  79  v.  107.] 

Sec.  656  R.  S.  [Powers  and  duties  of  board  of  state  charities ; 
governor  may!  order  investigation  by  board.]1  The  board  of 
state  charities  shall  be  provided  with  a  suitable  room  in  the 
state  house.    Regular  meetings  of  the  board  shall  be  held  quar- 


CHARITABLE  AND  REFORMATORY  INSTITUTIONS.  607 

terly,  or  oftener  if  required.  They  may  make  such  rules  and 
orders  for  the  regulation  for  their  own  proceedings  as  they  may 
deem  necessary.  They  shall  investigate  the  whole  system  of 
public  charities  and  correctional  institutions  of  the  state,  ex- 
amine into  the  condition  and  management  thereof,  especially 
of  municipal  and  state  prisons  and  reformatories,  workhouses, 
jails,  infirmaries,  children's  homes  and  state  institutions,  and 
the  officers  in  charge  of  all  such  institutions  and  those  who  are 
in  any  way  responsible  for  the  administration  of  public  funds 
used  for  the  relief  or  maintenance  of  the  poor,  shall  furnish 
the  board  or  its  secretary  such  information  and  statistics  •  as 
they  may  require ;  and,  to  secure  accuracy,  uniformity  and  com- 
pleteness in  such  statistics,  the  board  may  prescribe  such  forms 
of  report  and  registration  as  they  may  deem  necessary.  AH 
plans  for  new  jails,  workhouses,  children's  homes,  infirmaries, 
state  institutions  and  municipal  lockups  or  prisons,  and  for  im- 
portant additions  to  or  alterations  in  such  existing  institutions 
shall,  before  their  adoption  by  the  proper  officials,  be  submitted 
to  the  board  for  criticism  and  approval.  The  governor,  in  his 
discretion,  may,  at  any  time,  order  an  investigation  by  the 
board,  or  by  a  committee  of  its  members,  of  the  management 
of  any  penal,  reformatory  or  charitable  institutions  of  the  state, 
and  said  board  or  committee,  in  making  any  such  investigation, 
shall  have  power  to  send  for  persons  and  papers,  and  to  ad- 
minister oaths  and  affirmations ;  and  the  report  of  such  investi- 
gation, with  the  testimony,  shall  be  made  tothe  governor,  and 
shall  be  submitted  by  him,  with  his  suggestions,  to  the  General 
Assembly.  [93  v.  105;  1880,  April  15:  77  v.  227;  Rev.  Stat. 
1880;  73  v.  165,  §2;  (S.  &  S.  51).] 

(1)   Conferences  with  officers  of       board  of  charities,  see  §  656a  It.  S. 
benevolent,    penal    and    reformatory        (98  0.  L.  29). 
institutions  may  be  called  by  state 

Sec.  781—26  R.  S.  [Certain  city  councils  may  establish  homes 
for  the  friendless  in  certain  cases;  joint  contribution  of  funds 
etc.]  The  city  council  of  the  city  of  the  second  class,  situated  in 
such  county  as  aforesaid,1  shall  have  the  same  power  to  estab- 
lish, support  and  regulate,  within  and  for  such  city,  such  a  home 
and  school  as  is  described  in  the  first  section  [§  (781 — l)]2  of 
this  act;  and  in  regard  thereto,  said  council  and  the  members 
thereof  shall  have  the  same  powers,  rights,  and  duties,  and  be 
subject  to  the  same  prohibitions  and  penalties,  as  have  herein- 
before been  vested  in,  imposed  upon,  and  provided  for  the 
county  commissioners  of  any  county  described  in  the  said  first 
section  [§  (781 — 1)]  ;  and  any  such  city  home  shall  be  named 
Home  for  the  Friendless,  the  name  of  the  city  pre- 
ceding the  word  home;  provided,  however,  that  in  all  cases 
where  a  city  of  the  second  class  shall  be  situated  within  the 
limits  of  a  county,  described  in  the  first  section  [§  (781—1)] 


608  THE    OHIO    MUNICIPAL    CODE. 

of  this  act,  the  city  council  of  said  city  shall  not  proceed  to 
establish  or  provide  for  the  support  of  any  such  Home,  with- 
out first  communicating  to  the  county  commissioners  of  said 
county  a  copy  of  a  resolution  passed  by  said  council,  to  the 
effect  that  said  council  proposes  to  establish  or  support  such 
a  home ;  and  if  within  four  calendar  months  of  their  receipt  of 
said  copy,  said  commissioners  shall  not  make  and  adopt  an 
order  to  the  effect  that  they  will  establish  or  provide  a  county 
home,  the  aforesaid' city  council  may  proceed  to  establish,  or 
adopt  and  support  a  city  home.  Such  acts  as  have  been  here- 
inbefore required  to  be  done  by,  through,  or  in  connection  with 
the  county  auditor,  treasurer,  county  treasury,  commission- 
ers, journal,  or  other  county  officer,  office,  both,  or  depart- 
ment, in  the  case  of  a  county  home,  shall  be  done  through,  by, 
or  in  connection  with  the  corresponding  city  officer,  office,  both, 
or  department,  in  the  case  of  city  home:  provided,  further, 
that  any  city  of  the  second  class  situate  in  any  such  county  as 
aforesaid,  may,  through  its  city  council,  acting  in  conjunction 
with  the  commissioners  of  such  county,  contribute  to  the  pur- 
chase of  land,  erection  of  buildings,  and  support  of  such  home, 
or  the  commissioners  of  such  county  may  contribute  in  like 
manner  to  such  home  in  such  city ;  but  in  the  event  of  such  joint 
contributions  and  co-operation,  such  home  shall  be  under  the 
control  of  the  county  commissioners  in  case  the  county  con- 
tribute more  largely  than  the  city,  and  said  home  shall  be  con- 
trolled by  the  city  council  in  case  the  city  make  the  greater 
expenditure  in  that  behalf.      (70  v.  277.) 

(1)  See  §   781-1  R.  S.  employment,  and  reformation  of  ex- 

(2)  Home  for  the  Friendless.  posed,  helpless,  evil-disposed  or  vi- 
1 — §  (781-1)  provides  for  "a  cious  women  and  girls  "  to  be  known 
home  and  school  for  the  instruction,  as  the  "  Home  for  the  Friendless." 

Sec.  781 — 30  R.  S.  [Certain  moneys  shall  be  paid  over  to  the 
home  of  friendless  girls.]  All  justices  of  the  peace,  all  police 
courts  in  the  city  of  Toledo,  and  the  courts  of  common  pleas, 
and  all  courts  of  record  in  the  county  of  Lucas,  be  authorized 
and  required  to  pay  over  to  the  retreat,  a  home  for  friendless 
girls,  in  the  city  of  Toledo,  all  fines  and  forfeitures  arising 
from  the  prosecution  of  houses  of  ill-fame  or  prostitution,  or 
the  inmates,  residents  or  visitors  thereof  in  the  city  of  Toledo. 
The  said  courts  shall  pay  over,  monthly,  all  sums  of  money  so 
collected,  taking  therefor  a  receipt  from  the  treasurer  of  said 
retreat,  which  shall  be  a  voucher  for  said  courts  in  any  settle- 
ment with  the  city  or  county  treasurer,  for  the  sums  thus  col- 
lected by  said  courts.      [1888,  April  13 :  85  v.  535  ;  83  v.  392.] 


CHARITABLE   AND   REFORMATORY    INSTITUTIONS.  609 

Sec.  929 — 1  E.  S.  [Counties  and  cities  may  appropriate  not  to 
exceed  six  thousand  dollars  in  aid  of  children's  homes.  ]        In  any 

county  in  the  state  of  Ohio,  where  there  now  is  or  hereafter 
may  be  an  incorporated  "  children's  aid  society/'  or  "  children's 
home/'  or  "  industrial  school/'  Or  "  industrial  school  andj 
home/'  or  any  other  incorporated  society,  whose  object  is  the 
care,  aid  and  education  of  neglected  or  destitute  children,  the 
county  commissioners  of  such  county,  or  the  city  council  of  any 
city  or  cities  in  such  county,  in  addition  to  the  powers  now 
conferred  upon  such  commissioners  or  city  council,  are  hereby 
authorized,  if  they  deem  it  judicious  to  aid  any  such  institu- 
tion to  purchase  land,  erect  buildings,  either  by  subscription 
with  others  to  raise  a  fund  for  that  purpose,  or  by  direct  aid 
or  donation,  or  otherwise,  in  amount  not  exceeding  six  thoi  - 
sand  dollars,  as  they  may  deem  expedient.  [90  v.  27,  11 .;  66 
v.  11.] 

Sec.  974  R.  S.  [Duty  of  trustees  and  directors  of  infirmaries  as 
to  outside  relief;  costs  of  relief,  how  paid;  reports  to  board  of 
state  charities,  to  contain  what.  ]  When,  in  any  county  having 
an  infirmary,  the  trustees  of  a  city  or  township  shall,  after  mak- 
ing the  inquiry  provided  for,  be  of  the  opinion  that  the  person 
complained  of  is  entitled  to  admission  to  the  county  infirmary, 
they  shall  forthwith  transmit  a  statement  of  said  facts,  so  far 
as  they  have  been  able  to  ascertain  the  same,  to  the  infirmary 
directors,  and  if  it  appears  that  such  person  is  legally  settled 
in  said  township  or  has  no  legal  settlement  in  this  state,  or 
that  such  settlement  is  unknown,  and  the  directors  are  satis- 
fied that  said  person  should  become  a  county  charge,  they  shall 
forthwith  receive  said  person  and  provide  for  him  or  her  in 
said  institution,  or  otherwise,  and  thereupon  the  liabilties  of 
the  township  in  the  case  shall  cease,  but  the  infirmary  directors 
shall  not  be  liable  for  any  relief  furnished,  or  expenses 
incurred  by  the  township  trustees.  The  infirmary  directors 
shall  report  quarterly  to  the  board  of  state  charities,  the  names 
of  all  persons  to  whom  relief  has  been  given  outside  of  the 
infirmary,  whether  medical  or  otherwise,  together  with  their 
age,  sex  and  nationality,  whether  such  persons  are  married  or 
single,  and  if  married  the  number  of  persons  in  the  family, 
and  the  ages  of  each ;  also  the  reasons  for  extending  relief,  the 
nature  of  the  relief  given,  the  amount  of  same,  and  any  other 
information  that  may  be  prescribed  by  said  board.  [93  v.  266  ; 
83  v.  202,  203;  80  v.  108;  Eev.  Stat.  1880;  74  v.  32,  §  24; 
76  v.  10,  §  1.] 


610  THE    OHIO    MUNICIPAL    CODE. 

Sec.  985  R.  S.  [Penalty  for  bringing  pauper  into  city,  town- 
ship, or  county  with  intent  to  charge  with  support.]  If  a  person 
transports,  removes,  or  brings,  or  causes  to  be  transported,  re- 
moved, or  brought,  any  poor  or  indigent  person  into  any  city, 
township,  or  county  in  this  state,  without  lawful  authority, 
and  there  leaves  such  poor  indigent  person,  with  intent  to  make 
such  city,  township  or  county  chargeable  with  the  support  of 
such  person,  such  person  so  offending  shall  forfeit  and  pay  the 
sum  of  fifty  dollars  for  every  such  offense,  for  the  use  of  the 
poor  of  the  city  or  township  in  which  such  person  is  left,  to  be 
recovered  by  civil  action,  in  the  name  of  the  state,  before  any 
court  of  competent  jurisdiction.1  [93  v.  268;  77  v.  39;  Rev. 
Stat.  1880;  77  v.  23,  §  35;  (S.  &  S.  534;  S.  &  C.  932).] 

(1)  Recovery  of  expense  of  a  public  charge.  See  Howard  v. 
support  of  wife,  who  has  been  Whetstone  Tpv  10  O.  365;  Spring- 
abandoned  by  husband  and  become      field  Tp.  v.  Demott,   13  O.  104. 

Sec.  922 — 1R.  S.  [Morgue  for  Cuyahoga  Co.  and  Cleveland; 
coroner's  duties.]  The  county  commissioners  of  Cuyahoga 
county  be  and  they  are  hereby  authorized  to  purchase  a  site 
for  and  erect  a  public  morgue  for  the  joint  use  of  the  city  of 
Cleveland  and  the  county  of  Cuyahoga,  at  an  expense  not  to 
exceed  $40,000,  and  shall  provide  for  the  maintenance  of  the 
same  out  of  any  moneys  in  the  general  fund,  provided,  how- 
ever, that  no  special  tax  shall  be  levied  for  the  construction  of 
the  same,  but  shall  be  paid  out  of  any  fund  not  otherwise  ap- 
propriated. That  the  county  coroner  shall  have  charge  of  said 
morgue  and  it  shall  be  the  duty  of  said  coroner  to  see  that  all 
dead  bodies  brought  to  said  morgue  are  properly  kept  and  pre- 
served until  identified  or  claimed  for  burial  and  he  shall  collect 
from  the  friends  or  relatives  of  any  person  whose  dead  body 
was  found  within  his  county  and  which  was  caused  to  be  kept 
and  preserved  as  aforesaid,  and  who  at  the  time  of  his  or  her 
said  death  was  not  a  bona  fide  resident  of  said  county,  a  sum 
not  to  exceed  $10,  which  sum  shall  be  by  said  coroner  turned 
over  to  the  county  treasurer  of  said  county  to  be  credited  to 
the  fund  out  of  which  said  morgue  is  maintained.  The  cor- 
oner of  said  county  shall  before  turning  over  dead  bodies,  as 
provided  by  section  3763  of  the  Revised  Statutes  of  Ohio, 
cause  such  bodies  to  be  photographed,  and  together  with  any 
other  means  of  identification*  of  said  body  shall  cause  the  same 
to  be  preserved  with  the  record  of  said  death.  [92  v.  678 ; 
88  v.  898.] 

Franklin   Co.  morgue   authorized,  90  O.  L.  L.  171;   91  v.  718. 


CHARITABLE   AND   REFORMATORY   INSTITUTIONS.  611 

2.  WORKHOUSES.1 

General  Provisions. 

Sec.  2100c  R.  S.  [Cumulative  sentence;  habitual  offender.] 
Every  person  who,  after  having  been  convicted,  sentenced  and 
imprisoned,  in  any  workhouse  for  an  offense  committed  here- 
tofore  or  hereafter  in  this  state  in  violation  of  an  ordinance  of 
[a]  municipality,  or  a  law  of  this  state,  shall  be  convicted  of 
a  second  misdemeanor  whether  committed  in  violation  of  an 
ordinance  of  a  municipality  or  a  law  of  this  state,  punishable 
by  imprisonment  in  any  workhouse,  within  this  state,  shall  for 
such  second  offense,  be  punished  by  imprisonment  for  not  less 
than  double  the  penalty  imposed  for  the  first  offense;  and  in 
case  of  two  previous  convictions  for  such  misdemeanors,  the 
penalty  for  a  third  misdemeanor  shall  not  be  less  than  double 
the  penalty  imposed  in  the  last  of  such  previous  misdemeanors. 
But  no  greater  punishment  shall  be  inflicted  for  the  second  or 
third  misdemeanor,  than  the  maximum  penalty  provided  by 
law  or  ordinance  for  the  particular  offense  committed.  Every 
person  who,  after  having  been  three  times  convicted,  sentenced 
and  imprisoned  in  any  workhouse  or  workhouses  for  offenses 
committed  heretofore  or  hereafter  in  this  state,  whether  in  vio- 
lation of  law  or  ordinance,  shall  be  convicted  of  a  fourth  misr 
demeanor,  whether  committed  in  violation  of  an  ordinance  of 
a  municipality  or  law  of  this  state,  punishable  by  imprisonment 
in  any  workhouse  within  this  state,  shall,  upon  conviction  for 
such  offense  be  held  and  deemed  to  be  an  habitual  offender 
and  shall  be  imprisoned  in  a  workhouse  for  a  period  of  not  less 
than  one  year  nor  more  than  three  years.  -  In  all  such  cases 
the  court  may  order  that  the  offender  stand  committed  to  such 
workhouse  until  the  costs  of  prosecution  be  paid.  The  fact 
of  former  conviction  or  convictions  shall  be  charged  in  the  in- 
formation or  complaint  and,  if  proved,  shall  be  stated  in  the 
commitment.  A  pardon  for  a  former  offense  granted  on  the 
ground  of  innocence  shall  operate  as  a  full  defense  in  any 
charge  under  this  section  of  a  prior  conviction  for  such  offense. 
[92  v.  359;  90  v.  178.] 

(1)  Title,  division  and  chapter.  — In  cities,  see  §  141  of.  the  Code, 
—  Sections  under  this  heading  were  page  351  et  seq.  In  villages,  see  § 
formerly  contained  in  subd.  4,  chap.  204  of  the  Code,  page  456. 
6,  Div.  5,  Title  XII.,  R.  S.  Other  For  provisions  relating  to  Houses 
provisions  not  given  here,  are  re-  of  Refuge,  see  §  141  of  the  Code, 
enacted  in  §  141  of  the  Code,  p.  351.  and  sections  of  Revised  Statutes  re- 
Workhouses   under  new  Code.  enacted  therein,  p.   352. 

Sec.  2101  R.  S.  [Prompt  commitment;  fees.]  The  officer  hav* 
ing  the  execution  of  the  final  sentence  of  any  court,  magistrate, 


612  THE    OHIO    MUNICIPAL    CODE. 

or  mayor,  shall  cause  the  convict  to  be  conveyed  to  the  work- 
house as  soon  as  practicable  after  the  sentence  is  pronounced; 
and  all  officers  shall  be  paid  the  fees  therefor  allowed  by  law 
for  similar  services  in  other  cases  —  such  fees  to  be  paid,  when 
the  sentence  is  by  the  court,  out  of  the  county  treasury,  and 
when  by  the  magistrate,  out  of  the  township  treasury.  [66  v. 
196,  §  277.] 

Sec.  2103  It.  S.  [Punishment  for  escape  or  attempt  to  escape.] 
A  person  lawfully  committed  to  a  workhouse  who  escapes  there- 
from, or  breaks  the  same  with  intent  to  escape  therefrom,  or 
who  attempts  by  force,  or  in  any  other  way,  to  escape  there- 
from, whether  such  escape  be  effected  or  not,  shall,  upon  con- 
viction before  the  police  court,  court  of  common  pleas  for  the 
proper  county,  or  the  authority  by  which  such  person  was  orig- 
inally committed,  be  punished  by  confinement  in  such  work- 
house for  a  term  not  exceeding  double  the  term  for  which  the 
person  was  so  sentenced;  and  unless  the  former  sentence  has 
expired,  the  term  shall  commence  from  and  after  the  expira 
tion  of  the  former  sentence.      [66  v.  196,  §  279.] 

Sec.  2107  It.  S.  [Commissioners  may  unite  with  city  in  erecting 
workhouse.]  The  commissioners  of  any  county  may  unite  with 
any  city  or  village  located  in  such  county  in  the  acquirement  or 
erection,  management  and  maintenance  of  a  workhouse  for  the 
joint  use  of  such  county  and  city,  or  village,  upon  such  terms 
as  such  county  and  city,  or  village  may  agree;  and  the  commis- 
sioners are  authorized  to  levy  and  collect  the  necessary  funds 
therefor  from  the  taxable  property  of  the  county ;  that  the  work- 
house shall  be  managed  and  controlled  by  a  joint  board  com- 
posed of  the  county  commissioners  and  the  board  of  public 
service  of  the  city  or  the  board  of  trustees  of  public  affairs  in 
villages;  the  said  joint  board  shall  have  all  the  powers  and 
duties  in  the  management,  control  and  maintenance  of  such 
workhouse  as  are  conferred  upon  the  board  of  public  service 
in  cities,  and  in  addition  thereto  such  board  shall  also  have  the 
right  to  construct  sewers  for  said  workhouse  and  pay  for  the 
same  out  of  the  funds  raised  by  taxation  for  the  maintenance 
of  such  institution  and  such  board  shall  also  have  power  to 
lease  or  purchase  suitable  property  and  buildings  for  a  work- 
house, or  real  estate,  for  the  purpose  of  erecting  and  maintain- 
ing, a  workhouse  thereon,  provided  that  said  board  shall  not 
expend  more  than  $10,000.00  for  any  such  purpose  unless  the 
amount  be  approved  by  a  majority  of  the  voters  of  the  county, 
exclusive  of  the  city  or  village  voting  at  some  general  election. 
[97  v.  448 ;  81  v.  129 ;  68  v.  114.] 

Sec.  2107a (1)  It.  S.  [City  or  district  workhouse  may  receive 
persons  sentenced  from  other  counties.]  Any  city  or  district  hav- 
ing, or  that  may  hereafter  erect,  within  its  limits,  a  workhouse, 


CHARITABLE   AND   REFORMATORY    INSTITUTIONS.  613 

may  receive  as  inmates  of  such  workhouse  persons  sentenced 
thereto  as  provided  by  law,  from  counties  other  than  the  one 
in  which  such  workhouse  is  situated,  upon  such  terms  and  dur- 
ing such  length  of  time  as  may  be  agreed  upon  by  the  commis- 
sioners of  such  counties,  or  by  the  council  of  any  municipality, 
and  the  county  [council]  of  such  city,  or  the  board  of  district 
workhouses,  or  other  authority  having  the  management  and 
control  of  such  workhouse.  Provided,  that  such  convicts  so 
received  shall  in  all  respects  be  and  remain  under  the  control 
of  the  board  of  workhouse  directors,  and  subject  to  the  rules, 
regulations  and  discipline  of  such  workhouse,  the  same  as 
other  convicts  therein  detained.      [1883,  April  19 ;  80  v.  220.] 

Sec.  2107a (2)  E.  S.  [Commissioners  of  counties  may  unite  in 
erecting  a  workhouse;  submitted  to  electors.]  The  commission- 
ers of  any  counties  may  unite  in  the  erection,  management  and 
maintenance  of  a  workhouse  for  the  joint  use  of  such  counties, 
provided  that  before  said  workhouse  can  be  established  the 
question  of  the  establishment  of  said  workhouse  shall  be  first 
submitted  to  the  qualified  electors  of  each  of  said  counties  at  a 
general  election  and  that  a  majority  of  the  qualified  electors 
voting  upon  this  proposition  in  each  county  shall  have  voted 
in  favor  of  the  establishment  of  said  workhouse ;  and  provided 
further,  that  a  notice  of  the  submission  of  the  question  of 
building  a  workhouse  to  a  vote  at  any  general  election  shall  be 
published  for  four  weeks  prior  to  said  general  election  in  a 
newspaper  of  general  circulation  of  each  county  interested. 
[1883,  March  29:  80  v.  81.] 

Sec.  2107b  (1)R.  S.  [Board  of  directors.]  The  construction, 
management  and  control  of  any  workhouse  established  under 
section  2107a (2)  of  this  chapter,  and  the  maintenance  and 
care  of  the  convicts  therein,  shall  be  vested  in  a  board  of  di- 
rectors, who  shall  be  called  the  board  of  workhouse  directors, 
and  shall  be  composed  of  two  persons  from  each  county,  who 
are  electors  of  the  county  from  which  they  are  appointed,  and 
are  freeholders  therein,  to  be  appointed  by  the  board  of  county 
commissioners  of  each  county  composing  said  district,  who 
shall  belong  to  different  political  parties,  one  of  whom  shall  hold 
his  office  for  the  term  of  six  years,  and  one  for  the  term  of 
three  years.  The  board  of  workhouse  directors  shall,  at  the 
first  meeting,  and  annually  thereafter,  at  the  first  meeting  in 
May,  elect  a  president,  and  at  the  same  meeting  appoint  a  sec- 
retary, who  shall  make  a  complete  record  of  all  the  proceed- 
ings, and  such  other  officers  as  may  be  necessary,  and  fix  their 
compensation  for  their  services.  The  board  of  directors  shall 
not  be  entitled  to  any  compensation  for  their  services,  but  shall 
have  all  legitimate  expenses  paid  connected  with  their  duties, 
[90  v.  193;  80  v.  81,  82.] 


614  THE    OHIO    MUNICIPAL    CODE. 

Sec.  2107c  (1)  R.  S.  [Board  to  determine  location,  estimate  cost, 
and  certify  same  to  county  commissioners;  commissioners  to  make 
levy;  may  issue  bonds;  the  cost  of  maintaining;  how  paid.]  When- 
ever any  board  of  workhouse  directors  have  complied  with  the 
requirements  of  section  twenty-one  hundred  and  seven  (b), 
they  shall  proceed  to  determine  the  location  of  said  workhouse, 
and  make  an  estimate  of  the  cost  thereof,  including  the  cost  of 
purchasing  grounds  for  location,  which,  together  with  all  other 
transactions  of  the  board,  shall  be  made  a  complete  record 
thereof  by  the  secretary  in  a  book  to  be  kept  for  that  purpose, 
which  record  shall  be  approved  by  the  board  and  countersigned 
by  the  president,  and  shall  be  open  at  all  times  to  the  inspection 
of  any  resident  of  the  district.  After  the  selection  of  a  loca- 
tion and  the  approval  of  estimates  as  to  the  cost  of  purchasing 
a  site  and  the  construction  of  necessary  buildings  and  appli- 
ances for  said  workhouse,  the  board  shall  certify  over  the  seal 
of  the  president  and  secretary,  to  each  of  the  "  boards  of  county 
commissioners  "  within  the  district,  the  full  amount  of  the 
estimated  cost  of  location,  construction,  and  maintenance  of 
such  workhouse  for  one  year  from  the  first  regular  meeting  in 
May,  next  succeeding  this  certification.  Thereupon  each  board 
of  county  commissioners  shall  levy  upon  the  general  duplicate 
of  the  county  in  which  they  are  commissioners,  a  tax  equal  to 
each  of  said  county's  proportion  of  the  entire  estimated  cost, 
in  the  proportion  of  each  of  said  county's  valuation  in  the  gen- 
eral duplicate  to  the  aggregate  valuation  of  all  of  the  counties 
joining  the  formation  of  the  board  and  district.  After  such 
levies  are  made  by  each  of  the  county  boards  of  commissioners, 
each  of  said  boards  may  anticipate  said  levies  by  the  issuing  of 
bonds,  as  provided  in  other  clscs,  in  sections  eight  hundred  and 
seventy-one,  and  eight  hundred  and  seventy-two,  of  the  Revised 
Statutes.  The  avails  arising  from  the  sale  of  such  bonds  shall 
be  paid  over  to  the  treasurer  of  the  board  of  workhouse  direc- 
tors, after  said  treasurer  has  filed  with  the  board  a  bond,  to  be 
approved  by  the  board,  in  double  the  amount  of  the  estimated 
expense  of  construction  and  maintenance  of  said  workhouse, 
and  all  payments  for  construction,  maintenance,  or  any  other 
purpose  or  expense  whatever,  shall  be  paid  by  said  treasurer, 
when  said  bills  shall  have  been  approved  by  a  majority  of  the 
board  at  any  regular  or  adjourned  meeting,  and  when  a  voucher 
therefor  is  issued  by  the  secretary  and  countersigned  by  the 
president  of  the  board.  The  cost  of  maintaining  any  work- 
house established  under  the  provisions  of  this  act,  over  and 
above  the  proceeds  arising  from  the  sale  of  the  products  thereof, 


CHARITABLE  AND  REFORMATORY   INSTITUTIONS.  615 

shall  be  paid  by  each  of  the  counties  comprising  the  district,  in 
proportion  to  the  number  of  inmates  furnished  said  workhouse 
by  each  county,  to  the  aggregate  number  furnished  by  all ;  and 
said  expense  shall  be  paid  quarterly  by  each  of  the  boards  of 
county  commissioners,  of  the  counties  forming  the  district,  upon 
the  certificate  of  the  secretary  of  the  board  of  workhouse  di- 
rectors, approved  by  the  board  and  countersigned  by  the  presi- 
dent. And  the  boards  of  county  commissioners  are  hereby 
authorized  to  levy  a  tax  upon  the  general  duplicate  of  the 
county,  under  the  provisions  of  section  twenty-eight  hundred 
and  twenty-three,  of  the  Revised  Statutes,  such  a  sum  as  may 
be  necessary,  but  not  to  exceed  one-tenth  of  one  mill,  for  the 
aforesaid  maintenance.      [1883,  March  29 :  80  v.  81,  82.] 

Sec.  2107d(l)  R.  S.  [Directors  may  enlarge  buildings  or 
grounds ;  may  admit  other  counties.  ]  The  board  of  workhouse 
directors  may  enlarge  or  improve  the  buildings,  shops  or 
grounds  from  any  surplus  that  may  arise  from  sale  of  the 
products  or  from  the  levy  for  maintenance  made  by  the  counties 
forming  the  district,  but  no  levy  for  maintenance  shall  be  made 
when  it  has  not  been  necessary  to  use  more  than  one-half  of 
the  avails  of  the  levy  of  the  year  preceding.  And  any  surplus 
arising  from  the  carrying  on  of  the  district  workhouse  shall  be 
returned  to  the  general  fund  of  each  of  the  counties  compris- 
ing the  district,  in  the  proportion  to  the  number  of  inmates 
furnished  by  each  of  said  counties  to  the  whole  number  fur- 
nished by  the  district  for  the  current  year.  The  board  of 
workhouse  directors  may  receive  any  other  county  into  the  dis- 
trict upon  such  terms  and  conditions  as  the  board  may  deter- 
mine, and  when  any  county  is  thus  admitted  they  shall  be 
entitled  to  a  member  of  the  board  as  provided  in  section  twenty- 
one  hundred  and  seven  (b).      [1883,  March  29:  80  v.  81,  83.] 

Sec.  2107e(l)  It.  S.  [Who  shall  be  confined  therein;  term;  pro- 
cedure when  sentencd  by  court  of  common  pleas;  when  convicted 
by  any  other  court;  may  be  confined  in  jail  a  reasonable  period.] 

When  a  person  has  been  convicted  of  a  misdemeanor  by  any 
court  or  magistrate  of  this  state,  in  a  district  in  which  there  is 
a  workhouse,  it  shall  be  competent  for  such  court  or  magistrate 
to  sentence  such  person  to  such  workhouse  for  a  period  not 
exceeding  the  maximum  period  of  confinement  in  the  jail  of 
the  county  allowed  by  statute  for  such  offenses ;  and  in  all  such 
cases  the  court  or  magistrate  may  further  order  that  such  person 
stand  committed  to  such  workhouse  until  the  eosts  of  prosecu- 
tion are  paid,  or  he  be  discharged  as  herein  provided ;  and  in 
all  cases  where  a  fine  may  be  imposed  in  punishment  in  whole 


616  THE    OHIO    MUNICIPAL    CODE. 

or  in  part  for  an  offense  and  the  court  or  magistrate  could  order 
that  such  person  stand  committed  to  the  jail  of  the  county  until 
such  fine  and  the  costs  of  prosecution  are  paid,  such  eourt  or 
magistrate  may  order  that  such  person  stand  committed  to  such 
workhouse  until  such  fine  and  costs  are  paid,  or  until  he  be 
discharged  at  the  rate  of  sixty  cents  per  day  for  each  day  of 
confinement,  or  be  otherwise  legally  discharged.  When  a  per- 
son is  sentenced  to  such  workhouse  by  the  court  of  common 
pleas,  the  clerk  shall  make  and  deliver  to  the  sheriff  a  certified 
copy  of  the  docket  and  journal  entries  showing  the  crime 
charged  and  the  sentence  of  the  court,  which  shall  be  delivered 
by  the  sheriff  to  the  proper  officer  in  charge  of  such  workhouse, 
and  shall  be  his  warrant  for  detaining  such  person  in  custody 
therein ;  in  cases  of  such  convictions  by  any  other  court  or  mag- 
istrate,1 such  court  or  magistrate  shall  make  a  certified  tran- 
script of  the  docket  in  such  case,  which  shall  in  like  manner 
be  delivered  to  the  marsnal  or  constable,  or  sheriff  by  such 
court  or  magistrate,  which  shall  be  delivered  by  such  officer  to 
the  proper  officer  in  charge  of  such  workhouse,  and  shall  be  his 
warrant  for  detaining  such  person  in  custody  therein ;  in  all 
cases  of  sentence  to  a  workhouse  under  the  provisions  of  this 
act,  the  person  so  sentenced  may  be  confined  in  the  jail  of  the 
county  for  such  period  as  may  be  reasonably  necessary  for  the 
officer  to  procure  the  papers  and  make  arrangements  to  trans- 
port him  to  such  workhouse.      [1883,  March  29 :  80  v.  81,  83.] 

(1)    Prisoners      coming      from  timus.     Edis  v.  Butler,  8  N.  P.  183 

other      counties. —  When      persons  (aff'd  68  0.  S.  645). 

from   other  counties  are  committed  But    the    mittimus    is   not    neces- 

to  a  workhouse,  a  full  transcript  of  sary   when  officer   who   brings  pris- 

the   docket  of  the  magistrate   com-  0ner     also     brings     the     transcript, 

mitting  should  accompany  the  mit-  Anonymous,  7  N.  P.  554. 

Joint  City  and  County  Workhouse  in  Muskingum  County. 

.Sec.  2107a(3)  R.  S.     [Commissioners  authorized  to  unite  with 
Zanesville  in  erection  and  maintenance  of  a  workhouse.]      The 

commissioners  of  any  county  containing  a  population  by  the 
last  census  of  49,774  may  unite  with  any  city,  located  in  said 
county,  in  the  erection,  management  and  maintenance  of  a 
workhouse  for  the  joint  use  of  such  county  and  city;  and  the 
commissioners  are  authorized  to  levy  and  collect  the  necessary 
funds  therefor  from  the  taxable  property  of  the  county;  pro- 
vided, that  the  commissioners  shall  not  collect  and  expend  a, 
greater  amount  than  shall  be  collected  and  expended  by  such 


CHARITABLE   AND   REFORMATORY   INSTITUTIONS.  617 

city  for  the  same  purpose ;  and  provided  further,  that  not  more 
than  ten  thousand  dollars  shall  be  levied  or  appropriated  by  the 
commissioners  for  the  purpose  unless  the  amount  be  approved 
by  a  majority  of  the  voters  of  the  county,  exclusive  of  the 
city,  voting  at  some  general  election.  [1887,  March  19 :  84 
v.  136.] 

Sec.  2107b  (2)  R.  S.  [Board  of  directors.]  The  direction, 
management  and  control  of  any  such  joint  workhouse,  and  the 
maintenance  and  care  of  the  convicts  therein,  shall  be  vested 
in  a  board  of  five  directors,  who  shall  be  called,  "  the  board  of 
joint  city  and  county  workhouse  directors,"  and  such  directors 
shall  be  freehold  electors  of  such  county,  and  shall  serve  with- 
out compensation,  and  not  more  than  three  members  of  "  the 
board  of  joint  city  and  county  workhouse  directors  "  shall  be 
of  the  same  political  party  faith.      [91  v.  385  ;  84  v.  136,  137.] 

Sec.  2107c (2)  R.  S.  [Appointment  of  board;  terms  of  members.] 
The  directors  shall  be  appointed  by  the  mayor  of  the  city  hav- 
ing such  joint  workhouse,  with  the  approval  of  the  council  of 
such  city,  and  shall  hold  their  office  for  five  years,  except  that  at 
the  first  appointment  one  director  shall  be  appointed  for  one 
year,  one  for  two  years,  one  for  three  years,  one  for  four  years, 
and  one  for  five  years,  and  thereafter  one  shall  be  appointed  an- 
nually, but  hereafter  all  appointments  shall  be  made  in  conform- 
ity with  section  21076       [91  v.  386;  84  v.  136,  137.] 

Sec.  2107d(2)  R.  S.  [President,  secretary  and  clerk  of  board.] 
The  board  of  such  joint  city  and  county  workhouse  directors 
shall  elect  annually,  at  its  first  regular  meeting  in  May,  one  of 
its  members  as  president,  and  at  the  same  meeting  appoint  a 
secretary  and  clerk,  who  shall  make  a  complete  record  of  all  its 
proceedings,  and  the  said  board  may  appoint  such  other  officers 
as  may  be  necessary,  and  fix  the  compensation  of  all  officers 
for  their  services.      [1887,  March  19:  84  v.  136,  137.] 

Sec.  2107e(2)  R.  S.  [Contracts.]  Contracts  may  be  made  by 
or  on  behalf  of  the  board ;  but  it  shall  be  essential  to  the  validity 
of  every  such  contract,  that  the  same  be  assented  to  at  a  regu- 
lar meeting  by  a  majority  of  all  the  members,  and  a  minute 
thereof  entered  on  the  journal  of  its  proceedings.  [1887, 
March  19:  84  v.  136,  137.] 

Sec.  2107fR.  S.  [Superintendent  and  other  employes.]  The 
board  shall  have  power  to  appoint  a  superintendent,  deputy 
superintendent  and  such  subordinate  officers,  guards  and  em- 
ployes as  may  be  necessary,  fix  their  compensation  and  pre- 
scribe their  duties,  and  to  make  all  such  regulations  for  their 


618  THE    OHIO    MUNICIPAL     CODE. 

management    and    government  as    it    may    deem    expedient. 
[1887,  March  19 :  84  v.  136,  137.] 

Sec.  2107gR.  S.  [Rules  and  Regulations.]  The  board  shall 
have  power  to  make,  establish  and  enforce  rules  and  regulations 
for  its  own  government,  and  the  government  and  control  of  the 
institution,  its  officers  and  inmates,  and  make  contracts  for 
supplies  and  the  labor  of  its  inmates.  [1887,  March  19:  84 
V.  136,  137.] 

Sec.  2107h  R.  S.  [Books:  how  kept.]  The  books  of  the  insti- 
tution shall  be  so  kept  as  to  clearly  exhibit  the  time,  state  and 
condition  of  the  inmates,  the  number  received  and  discharged, 
and  by  what  court,  and  for  what  cause  committed,  the  length 
of  time  of  the  commitment  of  each  person,  the  number  of  days' 
labor  performed  by  each  convict,  and  the  nature  and  value  of 
such  labor  to  such  institution,  and  the  relative  costs  and  ex- 
pense^ incurred  by  the  institution  in  managing  and  taking  care 
of  each  convict,  and  the  number  employed  in  each  branch  of 
industry  carried  on,  and  the  receipts  from  and  expenditures  for 
and  on  account  of  each  department  of  business.  [1887.  March 
19:84v.  136,137.] 

Sec.  2107iR.  S.  [Quarterly  statements.]  The  board  shall 
cause  quarterly  statements  to  be  made,  specifying  minutely  all 
receipts  and  expenditures,  from  whom  and  for  what  purpose 
received,  and  to  whom  and  for  what  purpose  paid,  with  proper 
voucher  for  each  item,  and  submit  such  statement  properly  cer- 
tified to  the  council  of  such  city,  and  the  commissioners  of  such 
county,  for  their  examination  and  approval  [1887,  March 
19:  84  v.  136,  138.] 

Sec.  2107j  R.  S.  [Annual  report.]  The  accounts  of  the  insti- 
tution shall  be  annually  closed  and  balanced  on  the  first  Mon- 
day of  January  in  each  year.  And  full  reports  of  the  pre- 
ceding year  shall  then  be  made  and  submitted  to  the  city  coun- 
cil and  county  commissioners,  which  shall  be  published  in  some 
newspaper  of  such  city  of  general  circulation  in  the  county, 
or  in  such  other  form  as  the  board  of  directors  may  determine ; 
and  the  city  council  and  county  commissioners,  or  either  of 
such  bodies,  may  require  such  other  reports  and  exhibits  of  the 
condition  and  management  of  such  institution  as  they  may  deem 
proper.      [1887,  March  19:  84  v.  136,  138.] 

.Sec.  2107k  R.  S.  [Powers  and  duties  of  superintendent.]  The 
superintendent  of  such  workhouse  shall  have  the  control  and 
management  of  its  affairs,  subject  to  the  laws  of  the  state  and 
the  ordinances  of  the  corporation,  and  the  rules  and  regulations 


CHARITABLE  AND  REFORMATORY  INSTITUTIONS.  619 

adopted  by  the  board  for  its  government.  And  it  shall  be  his 
duty  to  obey  all  written  orders  and  instructions  of  the  board  not 
inconsistent  with  the  laws,  rules,  and  regulations  relating  to 
the  government  of  the  institution.  [1887,  March  19:  84  v. 
136,  138.] 

Sec.  2107 1 R.  S.  [General  powers  of  superintendent.]  The 
superintendent  shall  be  responsible  for  the  manner  in  which 
the  institution  is  managed  and  conducted,  shall  reside  at  the 
same,  devote  his  time  and  attention  to  the  proper  business 
thereof,  and  visit  and  examine  into  the  condition  of  every  de- 
partment thereof,  and  of  each  person  confined  therein,  daily, 
or  as  often  as  good  order  or  necessity  may  require,  and  he  shall 
exercise  a  general  supervision  and  direction  in  regard  to  all 
matters  of  discipline,  police  regulation  and  business  of  the 
institution.      [1887,  March  19 :  84  v.  136,  138.] 

Sec.  2107m  R.  S.  TDeputy  superintendent.]  In  the  absence 
or  inability  of  the  superintendent,  the  deputy  superintendent 
of  the  institution  shall,  so  far  as  relates  to  the  discipline  thereof, 
perform  the  duties  of  the  superintendent.  [1887,  March  19 : 
84  v.  136,  138.] 

Sec.  2107nR.  S.  [Removal  of  officers  and  employes.]  The 
board  for  misconduct  or  willful  neglect  of  duty,  and  upon  suffi- 
cient proof  thereof,  may  remove  any  officer  or  employe  of  the 
institution,  except  the  superintendent  thereof,  who  shall  be  re- 
moved for  cause  and  in  the  manner  provided  for  the  removal 
of  city  officers;  and  any  employe  of  the  superintendent  may  be 
discharged  at  his  discretion,  but  no  officer  shall  be  removed  by 
the  board,  until  he  has  had  an  opportunity  to  be  heard  in  his 
defense.      [1887,  March  19:  84  v.  136,  138.] 

Sec.  2107oR.  S.  [Cost  of  maintaining  such  workhouse,  how 
paid;  levy  of  tax;  dividing  deficiency  in  products  of  workhouse.] 
The  costs  of  maintaining  such  joint  city  and  county  workhouse 
over  and  above  the  proceeds  arising  from  the  sale  of  the  prod- 
ucts thereof,  shall  be  borne  by  such  city  and  county  jointly, 
and  such  expenses  shall  be  paid  quarterly  by  such  city  and 
county  out  of  the  respective  treasuries  thereof,  upon  the  cer- 
tificate of  the  secretary  of  such  joint  city  and  county  workhouse 
on  the  approval  of  the  council  of  such  city,  and  the  commis- 
sioners of  such  county.  And  the  board  of  county  commission- 
ers of  any  county  having  such  joint  city  and  county  work- 
house, are  hereby  authorized  and  required  to  levy  upon  the 
general  tax  duplicate  of  the  county  outside  of  the  corporate 
limits  of  such  city,  such  sum  as  may  be  necessary,  not  exceed- 
ing five-tenths*  of  one  mill  on  the  dollar  valuation;  and  the  city 


620  THE    OHIO    MUNICIPAL    CODE. 

council  of  such  city  are  hereby  authorized  and  required  to  levy 
upon  the  general  tax  duplicate  of  such  city,  such  sum  as  may  be 
necessary,  but  not  exceeding  one  mill  on  the  dollar  valuation 
for  the  aforesaid  maintenance;  and  the  board  of  such  joint  city 
and  county  workhouse  directors,  the  city  council  of  such  city 
and  the  county  commissioners  of  such  county,  in  ascertaining 
and  determining  at  the  end  of  each  quarter  the  amount  to  be 
paid  to  such  board  to  meet  any  deficiency  in  the  products  of 
such  joint  workhouse  to  maintain  the  same,  shall  take  into  ac- 
count and  be  governed  by  the  number  of  convicts  furnished  by 
such  city  and  such  county,  the  number  of-  days'  labor  per- 
formed by  the  convicts  from  each,  the  value  of  such  labor,  and 
the  relative  costs  and  expenses  of  taking  care  of,  managing,  and 
disciplining  the  convicts  of  each,  and  give  to  such  city  and 
county  each  full  credit  for  the  value  of  the  products  of  such 
workhouse  produced  by  the  labor,  skill  and  diligence  of  the 
convicts  from  each,  and  charge  to  the  account  of  each  (city  and 
county)  the  costs  to  such  institution  of  working,  managing, 
maintaining,  taking  care  of,  and  disciplining  its  convicts,  ana 
make  assessments  upon  such  city  and  county  for  the  mainte- 
nance of  such  institution  accordingly.  [1887,  March  19 :  84 
v.  136,  138.] 

Sec.  2107p  It.  S.  [Inmates  from  other  counties.]  Any  city  and 
county  or  county  having  or  that  may  hereafter  erect  a  joint  city 
and  county  workhouse,  or  a  county  workhouse,  may  receive  as 
inmates  of  such  joint  city  and  county  workhouse,  or  county 
workhouse,  persons  sentenced  thereto  as  provided  by  law,  from 
counties  and  municipal  corporations  having  no  workhouse,  upon 
such  terms  and  for  such  length  of  time  as  may  be  agreed  upon 
by  the  commissioners  of  such  county  or  the  council  of  such  mu- 
nicipal corporation,  and  the  board  of  such  joint  city  and  county 
workhouse  directors,  or  county  workhouse  directors ;  provided, 
that  such  convicts  so  received  shall,  in  all  respects,  be  and  re- 
main under  control  of  the  directors  of  such  workhouse,  and  sub- 
ject to  the  rules,  regulations  and  discipline  of  such  workhouse 
the  same  as  other  convicts  therein  detained.  [91  v.  180 ;  84 
v.  136,  139.] 

Sec.  2107q  R.  S.  [Counties  and  cities  having  no  workhouse 
may  make  provisions  for  care  of  prisoners  in  workhouse  of  other 
county,  etc.;  payment  of  expenses;  fees  of  officers.]  The  commis- 
sioners of  any  county,  or  the  council  of  any  municipal  corpora- 
tion, wherein  there  is  no  workhouse,  may  agree  with  the  coun- 
cil of  any  municipal  corporation  or  other  authority  having  con- 
trol of  the  workhouse  of  any  other  city,  or  with  the  directors  of 


CHARITABLE  AND   REFORMATORY   INSTITUTIONS.  621 

any  district  or  joint  city  and  county  workhouse,  or  county 
workhouse,  upon  terms  and  conditions,  upon  which  persons 
convicted  of  misdemeanor,  or  of  the  violation  of  any  ordinance 
of  such  municipal  corporation  by  any  court  of  [or]  magistrate 
of  such  county  or  municipal  corporation,  having  no  workhouse, 
may  be  received  into  such  workhouse,  under  sentence  of  such 
court  or  magistrate;  and  the  county  commissioners  of  any  such 
county,  and  the  council  of  any  such  municipal  corporation,  are 
authorized  to  pay  the  expenses  incurred  under  such  agreement 
out  of  the  general  fund  of  such  county,  or  of  the  municipal 
corporation,  upon  the  certificate  of  the  proper  officer  of  such 
Workhouse ;  and  the  sheriff  or  other  officer  transporting  any  per- 
son to  such  workhouse  shall  have  the  following  fees  therefor: 
Six  cents  per  mile  for  himself,  going  and  returning,  and  five 
cents  per  mile  for  transporting  such  convict,  and  five  cents  per 
mile  going  and  coming  for  the  service  of  each  guard,  to  be  al- 
lowed as  in  penitentiary  cases;  the  number  of  miles  to  be  com- 
puted by  the  usual  routes  of  travel,  to  be  paid  in  state  cases  out 
of  the  general  fund  of  the  county,  on  the  allowance  of  the 
county  commissioners,  and  in  case  for  the  violation  of  the  ordi- 
nances of  any  municipal  corporation  by  such  municipal  corpora- 
tion on  the  order  of  the  council  thereof.  [91  v.  180  ;  84  v.  136, 
139.] 

Sec.  2107rR.  S.  [Sentence  and  order  of  court  in  such  cases; 
credits  on  fines.  ]  When  any  person  has  been  convicted  of  a  mis- 
demeanor or  of  the  violation  of  any  ordinance  of  a  municipal 
corporation,  by  any  court  or  magistrate  of  this  state,  or  of  such 
municipal  corporation,  in  a  county  or  municipal  corporation 
having  no  workhouse,  and  the  commissioners  of  such  county, 
or  council  of  such  municipal  corporation  have  made  provisions 
as  allowed  by  law  for  receiving  persons  so  convicted  into  the 
workhouse  of  a  city  in  any  other  county  or  district,  or  a  joint 
city  and  county  workhouse,  or  a  county  workhouse  in  this  state, 
it  shall  be  competent  for  such  court  or  magistrate,  in  its  dis- 
cretion, where  imprisonment  in  the  county  or  municipal  jail 
may  by  law  or  ordinance  be  imposed  in  punishment  of  such  of- 
fense, to  sentence  such  person  to  such  workhouse  for  a  period 
not  exceeding  the  maximum  period  of  confinement  in  the  county 
or  municipal  jail  allowed  by  statute  or  ordinance  for  such  of- 
fense ;  and  in  all  such  cases  such  court  or  magistrate  may  fur- 
ther order  that  such  person  stand  committed  to  such  workhouse 
until  the  costs  of  prosecution  are  paid,  or  he  be  discharged,  as 
herein  provided ;  and  in  all  cases  where  a  fine  may  be  imposed 
in  whole  or  in  part  punishment  of  an  offense,  or  for  violation 


622  THE    OHIO    MUNICIPAL    CODE. 

of  an  ordinance  of  any  municipal  corporation,  and  such  court 
or  magistrate  could  order  that  such  person  stand  committed  to 
the  jail  of  the  county  or  municipal  corporation  until  such  fine 
and  costs  of  prosecution  are  paid,  such  court  or  magistrate  may 
order  that  such  person  stand  committed  to  such  workhouse  until 
such  fine  and  the  costs  of  prosecution  are  paid,  or  until  he  be 
discharged  therefrom  by  allowing  a  credit  of  sixty  cents  per 
day  on  such  fine  and  costs  for  each  day  of  confinement  in  such 
workhouse,  or  be  otherwise  legally  discharged.  [91  v.  181 ;  84 
v.  136,  140.] 

Sec.  2107s R.  S.  [Warrant  for  commitment  and  detention;  con- 
finement in  jail.]  When  a  person  is  sentenced  to  such  work- 
house by  the  common  pleas  court,  the  clerk  thereof  shall  make 
and  deliver  to  the  sheriff  a  certified  copy  of  the  docket  and 
journal  entries,  showing  the  crime  charged  and  the  sentence 
of  the  court,  which  shall  be  delivered  by  the  sheriff  to  the  proper 
officer  in  charge  of  such  workhouse,  which  shall  be  his  warrant 
for  detaining  such  person  in  custody  therein ;  in  cases  of  such, 
convictions  by  any  other  court,  or  magistrate  such  court  or  mag- 
istrate shall  make  a  certified  transcript  from  the  docket  in  such 
case,  which  shall  in  like  manner  be  delivered  to  the  marshal 
or  constable,  or  sheriff,  by  such  court  or  magistrate,  which  shall 
be  delivered  by  such  officer  to  the  proper  officer  in  charge  of 
such  workhouse,  which  shall  be  his  warrant  for  detaining  such 
person  in  custody  therein ;  in  all  cases  of  sentences  to  a  work- 
house, the  person  so  sentenced  may  be  confined  in  the  jail  of 
the  county  or  corporation  prison  for  such  period  as  may  be 
reasonably  necessary  for  the  officer  to  procure  the  papers  and 
make  arrangements  to  transport  him  to  such  workhouse. 
[1887,  March  19:  84  v.  136,  140.] 

Sec.  2107tR.  S.  [Payment  of  fines  and  costs.]  When  a  per- 
son is  committed  to  such  workhouse  under  sentence  that  he 
stand  committed  to  such  workhouse  until  the  fine  and  costs  of 
prosecution  assessed  against  him  are  paid,  as  provided  in  sec- 
tion two  thousand  one  hundred  and  seven  (p)  of  this  act,  such 
person  may  pay  in  money,  in  whole  or  in  part,  to  the  board  of 
workhouse  directors,  such  fine  and  costs  assessed  against  him, 
and  the  said  board  shall  receive  and  turn  the  same  quarterly, 
into  the  treasury  of  the  county  from  which  such  person  was 
committed;  provided,  that  such  person  was  so  committed  for 
the  violation  of  any  law  of  the  state ;  and  when  any  person  so 
committed  for  the  violation  of  an  ordinance  of  a  municipal 
corporation  shall  make  such  payment  to  such  board,  it  shall  be 
its  duty  to  receive  and  quarterly  turn  the  same  into  the  treas- 


CHARITABLE  AND  REFORMATORY   INSTITUTIONS.  623 

ury  of  the  municipal  corporation  from  which  such  person  was 
committed.      [1887,  March  19:  84  v.   136,  141.] 

Sec.  2107u  R.  S.  [Improvement,  etc.,  of  grounds,  buildings, 
etc.]  The  board  of  joint  city  and  county  workhouse  direc- 
tors, or  county  workhouse  directors,  may  enlarge  or  improve 
the  buildings,  shops  or  grounds  from  any  surplus  that  may  arise 
from  income  of  such  workhouse,  or  from  the  levy  for  such  main- 
tenance made  by  such  county  and  city,  or  county;  but  no  levy 
for  maintenance  shall  be  made  when  it  has  not  been  necessary 
to  use  more  than  one-half  of  the  avails  of  the  levy  of  the  year 
preceding;  and  any  surplus  arising  from  the  carrying  on  of 
[the]  such  joint  workhouse  shall  be  returned  to  the  general 
fund  of  such  city  and  county  in  the  proportion  that  such  sur- 
plus may  have  been  produced  by  the  labor  of  the  convicts  of 
each,  and  any  surplus  arising  from  the  carrying  on  of  such 
county  workhouse  shall  be  returned  to  the  general  fund  of  the 
county.      [91  v.  181;  84  v.  136,  141.] 

Sec.  2107vR.  S.  [Fees  of  officers.]  In  all  cases  of  sentence 
and  commitment  to  such  joint  city  and  county  workhouse,  all 
officers  shall  be  paid  the  same  fees  therefor  allowed  by  law  for 
similar  services  in  other  cases;  such  fees  in  cases  of  misde- 
meanor, shall  be  paid  out  of  the  county  treasury  of  the  county 
from  which  such  commitment  was  made,  and  when  such  sen- 
tence is  for  violation  of  an  ordinance,  such  fees  shall  be  paid 
out  of  the  treasury  of  the  municipal  corporation  from  which 
such  commitment  was  made.  [1887,  March  19:  84  v.  136, 
141.] 

Sec.  2107w  R.  S.  [Workhouse  directors  may  provide  for  parole 
of  prisoners.]  The  foregoing  board  of  joint  city  and  county 
workhouse  directors  shall  have  power  to  establish  rules  and  reg- 
ulations under  which  and  specify  the  conditions  on  which  any 
prisoner  may  be  allowed  to  go  upon  parole  outside  of  the  build- 
ings and  enclosures,  but  to  remain,  while  on  parole,  in  the  legal 
custody  and  under  the  control  of  the  board,  and  subject  at  any 
time  to  be  taken  back  within  the  enclosure  of  said  institution; 
and  full  power  to  enforce  such  rules  and  regulations,  and  condi- 
tions, and  to  retake  and  re-imprison  any  convict  so  upon  parole, 
is  hereby  conferred  upon  said  board,  whose  written  order,  cer- 
tified by  its  secretary,  shall  be  a  sufficient  warrant  for  all  offi- 
cers named  therein,  to  authorize  such  officer  to  return'  to  actual 
custody  any  conditionally  released  or  paroled  prisoner;  and  it 
is  hereby  made  the  duty  of  all  officers  to  execute  said  order  the 
same  as  ordinary  criminal  process ;  and  said  board  may  employ 
or  authorize  any  person  or  persons  to  see  that  the  conditions  of 


624  THE    OHIO    MUNICIPAL    CODE. 

said  paroles  are  not  violated,  and  in  case  of  such  violation  to 
return  any  such  prisoner  so  violating  said  parole  to  said  work- 
house, and  the  time  between  the  violation  of  the  conditions  of 
such  parole  or  conditional  release  (by  whatever  name),  as  en- 
tered by  order  of  the  board  in  the  record  of  its  meetings,  and  the 
re-imprisonment  or  return  of  such  prisoner  shall  not  be  counted 
as  any  part  or  portion  of  time  served  under  any  sentence;  and 
any  prisoner  at  large  upon  such  parole  who  fails  to  return  to 
the  actual  custody  of  said  workhouse  as  may  be  specified  as 
one  of  the  conditions  of  his  parole,  or  commits  a  fresh  crime 
and  is  convicted  thereof,  shall  be,  on  the  order  of  said  board, 
treated  as  an  escaped  prisoner  and  subject  to  the  penalties 
named  in  section  two  thousand  one  hundred  and  three  (2103) 
of  the  Eevised  Statutes,      [87  v.  39.] 

Agreement  for  Use  of  Work-House. 

Sec.  6801a  E.  S.  [Counties  having  no  work-house  may  contract 
with  work-house  authorities;  fees  for  transporting  persons  to 
work-house.]  It  shall  be  competent  for  the  commissioners  of 
any  county  or  the  council  of  any  municipality,  wherein  there  is 
no  work-house,  to  agree  with  the  city  council  or  other  authority 
having  control  of  the  work-house  of  any  city  in  any  other  county, 
or  with  the  board  of  district  work-houses  having  a  work-house, 
upon  terms  and  conditions  upon  which  persons  convicted  of 
misdemeanors,  or  of  the  violation  of  any  ordinance  of  such 
municipality,  by  any  court  or  magistrate  of  such  county  or 
municipality  having  no  work-house,  may  be  received  into  such 
work-house  under  sentence  of  such  court  or  magistrate ;  and  the 
county  commissioners,  or  the  council  of  any  municipality  are 
authorized  to  pay  the  expenses  incurred  under  such  agreement, 
out  of  the  general  fund  of  the  county  or  municipality,  upon  the 
certificate  of  the  proper  officer  of  such  work-house;  and  the 
sheriff  or  other  officer  transporting  any  person  to  such  work- 
house shall  have  the  following  fees  therefor :  six  cents  per  mile 
for  himself,  going  and  returning,  and  five  cents  per  mile  for 
transporting  each  convict,  and  five  cents  per  mile  going  and 
coming  for  the  services  of  each  guard,  to  be  allowed  as  in  peni- 
tentiary cases,  the  number  of  miles  to  be  computed  by  the  usual 
routes  of  travel,  to  be  paid  in  state  cases  out  of  the  general  fund 
of  the  county,  on  the  allowance  of  the  county  commissioners, 
and  in  cases  for  the  violation  of  the  ordinances  of  any  munici- 
pality, bv  such  municipality  on  the  order  of  the  council  thereof. 
[1884,  March  26 :  81  v.  84;  80  v.  220.] 

Sec.  6801b  R.  S.  [Courts  may  sentence  to  work-house  for  jail 
offense.]     When  any  person  has  been  convicted  of  a  misdemean- 


CHARITABLE    AND    REFORMATORY    INSTITUTIONS.  625 

or,  or  of  the  violation  of  any  ordinance  of  a  municipality  by 
any  court  or  magistrate  of  this  state  or  such  municipality,  in  a 
county  or  municipality  having  no  work-house,  and  the  commis- 
sioners of  such  county,  or  council  of  such  municipality,  have 
made  provisions  as  allowed  by  law  for  receiving  persons  so  con- 
visted  into  the  work-house  of  a  city  in  any  other  county  or  dis- 
trict in  the  state,  it  shall  be  competent  for  such  court  or  magis- 
trate, in  its  discretion,  where  imprisonment  in  the  county  or 
municipal  jail,  may  by  law  or  ordinance  be  imposed,  in  punish- 
ment of  such  offense,  to  sentence  such  person  to  such  work-house 
for  a  period  not  exceeding  the  maximum  period  of  confinement 
in  the  county  or  municipal  jail  allowed  by  statute  or  ordinance 
for  such  offense ;  and  in  all  such  cases,  such  court  or  magistrate 
may  further  order  that  such  person  stand  committed  to  such 
work-house  until  the  costs  of  prosecution  are  paid,  or  he  be  dis- 
charged as  herein  provided ;  and  in  all  cases  where  a  fine  may 
be  imposed  in  whole  or  part  in  punishment  of  an  offense,  or  for 
a  violation  of  an  ordinance  of  any  municipality,  and  such  court 
or  magistrate1  could  order  that  such  person  stand  committed  to 
the  jail  of  the  county  or  municipality  until  such  fine  and  the 
costs  of  prosecution  are  paid,  such  court  or  magistrate  may  order 
that  such  person  stand  committed  to  such  work-house  until  such 
fine  and  the  costs  of  prosecution  are  paid,  or  until  he  be  dis- 
charged therefrom  by  allowing  a  credit  of  sixty  cents  per  day  on 
such  fine  and  costs  for  each  day  of  confinement  in  such  work- 
house, or  be  otherwise  legally  discharged.  [1884,  March  26: 
81  v.  84;  80  v.  221.] 

Sec.  6801c  R.  S.  [Proceedings  when  committed  by  common 
pleas  court;  when  committed  by  other  court.]  Where  under  the 
provisions  of  the  preceding  sections,  a  person  is  sentenced  to 
such  work-house  by  the  court  of  common  pleas,  the  clerk  shall 
make  and  deliver  to  the  sheriff  a  certified  copy  of  the  docket  and 
journal  entries  showing  the  crime  charged  and  the  sentence  of 
the  court,  which  shall  be  delivered  by  the  sheriff  to  the  proper 
officer  in  charge  of  such  work-house  and  shall  be  his  warrant  for 
detaining  such  person  in  custody  therein ;  in  cases  of  such  con- 
victions by  any  other  court  or  magistrate,  such  court  or  magis- 
trate shall  make  a  certified  transcript  of  the  docket  in  such  case, 
which  shall  in  like  manner  be  delivered  to  the  marshal,  or  con- 
stable, or  sheriff  by  such  court  or  magistrate,  which  shall  be 
delivered  [by]  such  officer  to  the  proper  officer  in  charge  of  such 
work-house  and  shall  be  his  warrant  for  detaining  such  person  in 
custody  therein ;  in  all  cases  of  sentences  to  work-house  under 
the  provisions  of  this  act,  the  person  so  sentenced  may  be  con- 


626  TEE    OHIO    MUNICIPAL   CODE.' 

fined  in  the  jail  of  the  county  for  such  period  as  may  be  reason- 
ably necessary  for  the  officer  to  procure  the  papers  and  make 
arrangements  to  transport  him  to  such  work-house.  [1883, 
April  19:  80  v.  221.] 

3.  HOSPITALS.1 

Sec.  2153  R.  S.  [Board  of  hospital  commissioners.]  When  the 
council  of  a  city  or  village  enters  upon  and  takes  possession 
of  grounds  purchased,  appropriated,  or  otherwise  obtained  for 
hospital  purposes,  and,  by  resolution  or  ordinance,  determines 
to  erects  thereon  or  rebuild  a  hospital,  the  erection  and  repair 
thereof,  or  any  addition  thereto,  and  the  management,  direc- 
tion, and  control  of  the  same,  shall  be  vested  in  a  board  of  five 
commissioners,  called  the  "-Board  of  Hospital  Commission- 
ers." 2      [66  v.  197,  §  283.] 

(1)  Title,  division  and  chapter.  Liability  for  negligence. — There 
• —  Sections  here  given  formed  is  no  liability  on  the  part  of  a  cor- 
part  of  Chap.  3,  Div.  6,  Title  XII.,  poration  maintaining  a  charity 
R.  S.,  relating  to  hospitals.  For  hospital  for  the  negligence  of  a 
re-enacted  sections  (2165,  and  nurse  selected  with  due  care.  Con- 
2167-9  to  2167-21,  inclusive)  see  §§  nor  v.  Sisters  of  the  Poor,  7  N.  P. 
141   and  220  of  the  Code,   pp.   365  514. 

and  497.  Power  to  establish   and  main- 

(2)  Managing  board. —  In  cities  tain  hospitals  is  conferred  upon  all 
see  §  141  of  the  Code,  page  351.  municipalities  in  paragraph  16  of 
In  villages,  see  §  204  of  the  Code,  §  7  of  the  Code,  page  55.  Power  to 
page  456.  appropriate    property    for    hospital 

Scope  of  authority. —  See  Zanes-      purposes,  see  §  10  of  the  Code,  page 
ville  v.  Crossland,  8  C.  C.  652,  re-       81. 
versed  in  56  0.  S.  735. 

Sec.  2154  R.  S.  [Who  shall  compose  the  board.]  The  board  1 
shall  consist  of  the  mayor,  who  shall,  by  virtue  of  his  office,  be 
its  president,  and  four  trustees,  to  be  appointed  by  the  mayor, 
with  the  consent  of  the  council,  each  of  which  commissioners 
shall  be  resident  freehold  electors  of  the  corporation,  and  they 
shall  not  receive  any  compensation  for  their  services.  [66  v. 
197,  §  284.] 

( 1 )  Managing  board. — In  cities  In  villages,  see  §  204  of  the  Code, 
Bee    §    141   of  the  Code,  page  351.      page  456. 

Sec.  2154a  R.  S.  [In  Portsmouth  board  of  public  affairs 1  to 
exercise  powers  of  hospital  commissioners.]  In  cities  of  the  sec- 
ond class,  third  grade  c  the  board  of  public  affairs  shall  have 
the  powers,   and  perform  the   duties  conferred   and   imposed 


CHARITABLE    AND    REFORMATORY    INSTITUTIONS.  627 

upon  the  board  of  hospital  commissioners,  in  such  cities,  by 
chapter  three,  division  six,  title  twelve  of  the  Revised  Statutes 
of  Ohio.      [93  v.   616.] 

(1)    See   note    (1)    to    §   2154   R.  S.,  supra. 

Sec.  2155  R.  S.  [Their  terms  of  office.]  The  term  of  office 
of  the  appointed  members  of  the  board  *  shall  be  four  years, 
but  the  members  first  appointed  shall  hold  their  offices,  respec- 
tively, as  shall  be  determined  by  lot,  at  the  first  meeting  of 
the  board,  for  the  period  of  one,  two,  three,  and  four  years,  and 
thereafter  one  member  shall  be  appointed  each  year  for  the  full 
term  of  four  years;  and  a  majority  of  the  board  shall  constitute 
a  quorum.      [QQ  v.   197,  §  285.] 

(1)   See  note  (1)  to  §  2154  R.  S.,  supra. 

Sec.  2156  R.  S.     [Their    powers,    compensation    of    appointees, 

etc.]  The  board  1  shall  have  power  to  appoint  a  clerk,  an 
architect,  a  superintendent,  and  other  necessary  employes,  fix 
their  compensation,  and  adopt  a  suitable  plan  for  such  hospital, 
and  make  all  contracts  for  the  erection  and  furnishing  of  the 
same;  but  the  salary  of  the  appointees,  and  the  plan  of  the 
hospital,  before  any  contract  for  its  erection  is  entered  into, 
shall  be  submitted  to  and  approved  by  the  council.  [66  v. 
197,  §  286.] 

(1)   See  note  (1)   to  §  2154  R.  S.,  supra. 

Sec.  2157  R.  S.     [Regular  meetings,  and  record  thereof.]       The 

board  1  shall  hold  regular  meetings  at  such  time  and  place  as 
may  be  agreed  upon,  and  cause  to  be  kept  a  full  record  of  its 
proceedings ;  and  no  contract  which  it  enters  into  shall  be  valid 
until  assented  to  at  a  regular  meeting  and  concurred  in  by  a 
majority  of  all  the  members,  and  such  assent  entered  on  the 
minutes  of  its  proceedings.      [66  v.  197,  §  287.] 

(1)  See  note  (1)  to  §  2154  R.  S.,  supra. 

Sec.  2158  R.  S.  [No  expenditure  without  authority  of  board; 
no  member  to  be  interested,  etc.]  No  money  shall  be  paid  for 
the  erection,  rebuilding,  or  repair  of  a  hospital,  or  for  an  addi- 
tion thereto,  or  for  supplies  therefor,  unless  first  authorized 
by  the  board,1  and  upon  the  warrant  of  the  proper  officer 
of  the  corporation;  and  no  member  of  the  board  shall  be  in- 
terested,2 directly  or  indirectly,  in  any  contract  concerning  the 
institution.      [66  v.  197,  §  288.] 


THE    OHIO    MUNICIPAL    CODE. 

(1)  See  note  (1)  to  §  2154  R.  S.,  tract.— See  §  45  of  the  Code  and 
supra.  note  3  thereunder,  page  177. 

(2)  Officer  interested   in   con- 
Sec.  2159  R.  S.     [Plans,  specifications,  etc.]       It  shall  be  the 

duty  of  the  board,1  before  entering  into  any  contract  for  the 
erection  of  a  hospital  building,  to  cause  plans,  specifications, 
detailed  drawings,  and  forms  of  bids  to  be  prepared ;  and  when 
adopted  by  the  board,  it  may,  at  its  discretion,  cause  the  plans 
and  drawings  to  be  lithographed,  and  the  specifications,  and 
forms  of  bids,  and  a  form  of  contract  and  bond,  to  be  prepared 
by  the  solicitor  of  the  corporation,  and  have  the  same  printed  for 
distribution  among  the  bidders.      [66  v.  198,  §  289.] 

(1)  See  note  (1)  to  §  2154  R.  S.,  supra. 

Sec.  2160  R.  S.  [Terms  of  contracts,  etc.]  All  contracts  shall 
be  made  in  the  name  of  the  corporation,  and  it  shall  be  stipulat- 
ed therein  that  the  contractors  will  not  execute  any  extra  work, 
or  make  any  modifications  or  alterations  mentioned  in  the 
specifications  and  plans,  unless  ordered  in  writing  by  the 
board ;  1  that  they  will  not  claim  any  pay  for  the  same  unless 
such  written  order  is  given,  and  the  extra  price  of  compensa- 
tion fixed  and  agreed  upon;  and  copies  of  the  plans  and  draw- 
ings, attested  by  the  contractor,  and  the  original  bids,  speci- 
fications, and  contracts  shall  be  deposited  in  the  office  of  the 
clerk  of  the  corporation.2      [66  v.  199  (198),  §  290.] 

(1)  See  note  (1)  to  §  2154  R.  S.,  to  contractor,  it  was  held  that  the 
supra.  action    of    the    board    amounted    to 

(2)  Waiver  of  written  orders.  a  waiver  of  written  orders  and 
—  Where  hospital  board  reserved  contractor  could  recover  for  work 
the  right  to  change,  alter,  or  mod-  done.  Cincinnati  v.  Cameron,  33 
ify  plans,  and  exercised  the  right,  0.  S.  336.  But  see  Wellston  v.  Mor- 
but   no   written   orders   were  issued  gan,  65  O.  S.,  219. 

Sec.  2161  R.  S.  [Proposals  to  be  advertised  for.]  The  board  1 
shall  not  enter  into  any  contract  for  work  or  materials,  except 
as  relates  to  procuring  plans,  drawings,  specifications,  and 
forms  of  bids,  without  first  causing  thirty  days'  notice  to  be 
given  in  one  or  more  newspapers  of  general  circulation  in 
the  corporation,  that  sealed  proposals  will  be  received  for  doing 
the  work  or  furnishing  the  materials.  \_66  v.  199  (198),  § 
291.] 

(1)   See  note  (1)  to  §  2154  R.  S.,  supra. 


CHAEITABLE    AND    REFORMATORY    INSTITUTIONS.  629 

Sec.  2162  R.  S.  [Bids  to  be  accompanied  by  bond,  etc.]  Each 
bid  shall  be  accompanied  with  a  bond,  signed  by  sufficient  sure- 
ties, for  the  acceptance  of  the  contract,  if  awarded  by  the 
board,1  to  fully  secure  any  difference  between  the  amount  of 
such  bid  and  the  next  higher  bid;  and  such  amount  shall  be 
collected  by  the  board,  and  paid  into  the  hospital  fund,  in 
case  of  refusal  by  the  bidder  to  enter  into  contract  according 
to  his  bid,  within  such  reasonable  time  as  the  board  may  deter- 
mine.     [66  v.   199    (198),  §292.] 

(1)   See  note  (1)  to  §  2154  R.  S.,    supra. 

Sec.  2163  It.  S.  [Bids  to  be  sealed,  indorsed,  etc.]  All  bids 
shall  be  inclosed  in  a  sealed  envelope  and  deposited  with  the 
clerk  of  the  board,  and  such  sealed  envelope  shall  have  indorsed 
thereon  the  nature  of  the  same ;  and  all  bids  shall  be  opened  at  a 
regular  meeting  of  the  board.1      [66  v.  198,  §  294.] 

(1)   See  note  (1)  to  §  2154  R.  S.,  supra. 

Sec.  2164  R.  S.  [Contract  with  lowest  bidder.]  The  board  1 
shall  enter  into  contract  with  the  lowest  responsible  bidder,2 
upon  his  giving  bond  to  the  corporation,  with  such  surety 
as  the  board  shall  approve,  that  he  will  perform  the  work  and 
furnish  materials  in  accordance  with  his  contract;  and  on 
failure  of  such  bidder,  within  a  reasonable  time,  to  be  fixed 
by  the  board,  to  enter  into  bond  with  the  surety  before  pro- 
vided, a  contract  may  be  made  with  the  next  lowest  responsible 
bidder,  and  so  on,  until  a  contract  is  effected  by  a. contractor 
giving  bond  as  aforesaid;  provided,  that  the  board  may  reject 
•any  and  all  bids.3      [66  v.  198,  §  293.] 

(1)  See  note  (1)  to  §  2154  R.  S.,  (3)  §  2165  R.  S.  is  re-enacted 
supra.                                                            in   §   141  of  the  Code. 

(2)  Letting  of  contracts. —  See 
notes  to  §   143  of  the  Code. 

Sec.  2166  R.  S.  [Council  may  enter  into  agreement  with  any 
corporation,  etc.]1  The  council  may  enter  into  an  agreement 
with  a  corporation  or  association,  organized  for  charitable  pur- 
poses in  such  municipal  corporation,  for  the  erection  and  man- 
agement of  a  hospital  for  the  sick  and  disabled,  and  for  a  per- 
manent interest  therein,  to  such  extent  and  upon  such  terms  and 
conditions  as  may  be  agreed  upon  between  the  council  and  such 
corporation  or  association;  and  the  council  sh^ll  provide" for  the 
payment  of  the  amount  agreed  upon,  for  any  interest  so  ac- 
quired,  either  in  one  payment,   or  installments,   or  so  much, 


630  THE    OHIO    MUNICIPAL    CODE. 

from  year  to  year,  as  the  parties  may  stipulate.2      [66  v.  199, 
§  296.] 

(1)  Public  use  of  private  cor=  (2)  Contracting  power  of 
poration's  hospital. —  See  para-  council. —  See  Zanesville  v.  Cross- 
graph  23  of  §  7  of  the  Code,  page  land,  8  C.  C.  652,  reversed,  with- 
61.  out  report,  in  56  O.  S.  735. 

Sec.  2167  R.  S.  [Exception  of  application  as  to  Commercial 
Hospital  of  Cincinnati.]  The  provisions  of  this  chapter  shall, 
so  far  as  applicable,  govern  hospitals  heretofore  established 
and  erected ;  but  nothing  in  this  title  repeals  any  part  of  the 
act  of  March  11,  1861,  "  regulating  the  Commercial  Hospital 
of  Cincinnati,"  or  the  acts  amendatory  thereof  and  supplemen- 
tary thereto.1     [67  v.  33,  §  297.] 

(1)   Government  of  Cincinnati  by    virtue   of    numerous    legislative 

Hospital. —  The  government  of  the  enactments,  a  municipal  institution, 

commercial    hospital    of    Cincinnati  The  new  Code  now  confers  upon 

was  held  under  former   laws  to  be  the  board    of  public   service    in   all 

in   the  board   of  trustees   and   city  cities  the  management  and  control 

to  have  no  authority  over  it.     State  of  municipal  hospitals.     See  §    141 

v.  Cincinnati,   23  O.   S.  445;    State  of   the    Code.      The    sections    which 

v.  Davis,  23  O.  S.,  434.    But  in  Cin-  follow,   2167-1   to  2167-6   R.   S.,  in- 

cinnati   v.  Trustees,   66   O.   S.,  440,  elusive,  are  special  acts  for  the  gov- 

it  was  held  that  the  Cincinnati  hos-  ernment  of  the  Cincinnati  hospital, 

pital,  whether  originally  a  state  or  and   are  not  expressly   repealed   by 

a  municipal  institution,  had  become,  the  Code. 

Sec.  2167 — 1  E.  S.  [Cincinnati  hospital.]  The  public  infirm- 
ary in  the  city  of  Cincinnati,  established  by  an  act  entitled 
"  an  act  establishing  a  commercial  hospital  and  lunatic  asylum' 
for  the  State  of  Ohio,"  passed  January  22,  1821,  shall  hereafter 
be  called  and  known  by  the  name  of  the  "  Commercial  Hospital 
of  Cincinnati,"  1  and  shall  remain  upon  the  present  hospital 
lot,  and  shall  be  used  for  the  reception  and  care  of  such  sick 
persons  as  may  by  law  be  entitled  to  admission  therein  for 
treatment  as  patients.      [58  v.  151.] 

( 1 )   By     a      supplementary     act      pital    of    Cincinnati "   was   changed 
passed   April   3,    1868    (65   v.   232)       to  the  "Cincinnati  Hospital." 
the  name  of  the  "  Commercial  Hos- 

Sec.  2167 — 2R.  S.  [Government  and  control  thereof;  trustees: 
how  appointed;  term  of  office.]  The  government  and  control 
of  said  hospital  shall  be  vested  in  a  board  of  seven  trustees,1 
to  be  created  as  follows :  The  mayor  of  the  city  of  Cincinnati 
and  the  director  of  the  city  infirmary  of  said  city  eldest  in 


CHAEITABLE    AND    REFORMATORY    INSTITUTIONS.  631 

commission  shall,  ex-officio,  be  members  of  said  board ;  one  trus- 
tee shall  be  appointed  by  the  governor  of  the  state,  two  by  the 
judges  of  the  superior  court  of  Cincinnati,  and  two  by  the 
judges  of  the  court  of  common  pleas  of  Hamilton  county. 
The  term  of  office  of  said  trustees  so  appointed  shall  be  five 
years,  except  that  those  first  appointed  shall  be  classified  by 
lot,  so  that  their  terms  shall  expire  in  one,  two,  three,  four  and 
five  years  respectively.  All  vacancies  from  any  cause  shall  be 
filled  for  the  unexpired  terms  as  originally  provided.  Said 
trustees  shall  receive  no  compensation.      [58  v.  151.] 

(1)  Government  of  Cincinnati 
hospital.— See  note  to  §  2167  R.  S., 
supra. 

Sec.  2167 — 3  R.  S.  [Trustees  to  make  rules  and  appoint  attend- 
ants.]1 The  trustees2  shall  have  the  exclusive  management  of 
said  hospital;  they  shall  make  rules  and  regulations  for  the 
conduct  and  government  of  the  same;  they  shall  appoint  such 
officers  and  servants  of  said  hospital,  including  all  medical  at- 
tendants resident  therein,  as  they  may  deem  necessary,  and 
may  remove  them  at  pleasure,  and  shall  fix  their  compensation. 
[58  v.  151.] 

(1)   Supplemental  §  2 167-3a  R.  S,  (2)    See   note  to    §    2167    R.    S., 

95  0.  L.  259  was  repealed  by  Code.      supra. 

Sec.  2167 — 4  R.  S.  Board  of  trustees  may  levy  a  tax  for  certain 
purposes ;  proviso ;  board  to  make  rules  for  the  government  of  the 
hospital.]  That  the  board  of  trustees  1  of  the  Cincinnati  Hos- 
pital are  hereby  authorized  to  levy  a  tax  not  exceeding  forty- 
eight  one-hundredths  of  one  mill  on  the  dollar  valuation  on  the 
grand  duplicate  of  all  taxable  property  in  said  city  of  Cincin- 
nati, in  each  and  every  year,  and  certify  the  same  to  the  auditor 
of  the  city  of  Cincinnati,  on  or  before  the  first  Monday  of  June 
annually;  and  the  county  auditor  shall  place  the  same  on  the 
tax  duplicate  of  said  county,  the  receipts  whereof  shall  be  paid 
into  the  county  treasury,  as  a  special  fund  for  the  payment  of 
all  expenses  incurred  for  building,  rebuilding,  furnishing,  sup- 
plying, and  supporting  said  hospital  and  grounds;  and  the  city 
treasurer  shall  disburse  the  same,  on  the  order  of  the  board 
of  trustees,  signed  by  the  president^  and  countersigned  by  the 
secretary  of  said  board;  provided,  that  the  said  trustees  shall 
levy  only  the  amount  of  taxes  necessary  for  the  purposes  before 
mentioned ;  and  the  amount  which  the  council  of  the  city  of  Cin- 
nati  is  now  authorized  to  levy,  shall  be  and  is  hereby  reduced 


632  THE    OHIO    MUNICIPAL    CODE. 

by  the  amount  which  the  said  trustees  shall  certify  to  the  said 
auditor,  as  herein  provided ;  and  in  no  one  year  shall  the  amount 
so  certified  by  the  said  trustees,  and  the  amount  authorized  to 
be  levied  by  council,  exceed  the  amount  which  said  council  has 
a  right  by  law  to  levy.  The  board  of  trustees  shall  adopt  rules 
and  regulations  for  the  government  of  said  institution,  and  for 
the  admission  of  patients  and  discharge  of  convalescents  from 
said  hospital  and  said  branch  hospitals,  as  may  be  established  by 
law.  [1878,  May  13  ;  75  v.  1166  ;  72  v.  197  ;  61  v.  142  ;  58  v. 
161,  162;  58  v.  151.] 

(1)    See   note    to    §    2167    R.    S.,  supra. 

Sec.  2167 — 5R.  S.  [Duties  and  rights  of  the  faculty  of  the 
medical  college  of  Ohio;  trustees  to  make  suitable  provisions; 
power  of  the  trustees ;  admission  of  pupils  of  other  colleges  into  the 
hospital;  library;  medical  library  may  be  deposited  in  public 
library  of  the  city  of  Cincinnati;  proviso.]  It  shall  be  the  duty 
of  the  faculty  of  the  medical  college  of  Ohio,1  to  visit  and 
attend  the  patients  in  said  hospital,  and  to  render  them  proper 
medical  and  surgical  advice  and  service  without  compensation 
therefor,  in  consideration  of  which  said  faculty  shall  have  the 
privilege  of  introducing  the  pupils  of  said  college  into  said 
hospital,  under  such  regulations  as  the  trustees  2  may  prescribe, 
to  witness  the  medical  and  surgical  treatment  of  patients.  The 
trustees  may  make  such  provisions  as  to  them  may  seem  ad- 
visable, for  medical  and  surgical  advice  and  service  to  said 
patients  additional  to  or  other  than  that  rendered  by  said 
faculty;  but  no  compensation  shall  be  paid  therefor,  except  to 
medical  attendants  resident  in  the  hospital.  The  trustees  shall, 
under  such  regulations  as  they  may  prescribe,  admit  medical 
students,  not  pupils  of  said  college,  to  witness  tbe  medical  and 
surgical  treatment  of  patients  in  said  hospital.  The  trustees 
shall  have  the  power,  whenever  they  may  deem  it  for  the 
welfare  of  said  patients  so  to  do,  to  dismiss  the  faculty  of 
said  college  from  attendance  on  said  hospital.  The  trustees 
may  affix  to  the  introduction  or  admission  into  said  hospital  of 
the  pupils  of  said  college  or  other  medical  students,  such  fee 
as  they  may  deem  proper ;  but  the  same  shall  be  alike  to  all,  and 
shall  be  paid  to  the  treasurer  of  the  city  of  Cincinnati,  and  be 
used  as  a  fund  for  establishing  and  maintaining  a  medical  li- 
brary and  museum  for  said  hospital ;  and  said  board  of  trustees 
shall,  from  time  to  time  appropriate  and  apply  said  fund  for  the 
purchase  of  a  library  of  scientific  books  and  specimens,  and 
illustrations  directly  connected  with,  and  collateral  to,  the  culti- 


CHARITABLE    AND    REFORMATORY    INSTITUTIONS.  633 

vation  of  medical  and  surgical  science,  which  shall  be  open  at 
reasonable  hours  to  all  physicians  of  the  city  of  Cincinnati,  and 
to  all  such  pupils  and  medical  students  admitted  to  the  privi- 
leges of  said  hospital,  as  aforesaid,  free  of  charge.  The  trus- 
tees shall  expend,  annually,  at  least  two-thirds  of  said  fund  for 
books,  periodicals,  and  binding  for  said  medical  library,  and  the 
said  medical  library  shall  be  kept  in  said  commercial  hospital 
of  Cincinnati,  but  in  the  discretion  of  the  board  of  trustees  of 
the  said  commercial  hospital  of  Cincinnati  may  be  deposited 
in  the  fire-proof  building  of  the  public  library  of  Cincinnati; 
provided,,  the  managers  of  said  public  library  shall  receive  it 
free  of  charge,  provide  separate  alcoves  or  apartments  for  it, 
catalogue,  and  furnish  a  distinctive  label  to  each  book  of  said 
medical  library,  and  keep  it  accessible  to  those  entitled  to  its 
use.  The  trustees  shall  publish  annually,  a  statement  of  the 
receipts  and  expenditures  of  said  fund.  [1875,  March  27 : 
72  v.  223 ;  67  v.  120 ;  58  v.  151.] 

( 1 )    Faculty     of     college. —  The  Powers. — They  may  appoint  resi 

faculty  are  to  render  such  services  dent  physicians  and  the  city  is  li- 

without  compensation  as  is  consist-  able  for  a  reasonable  sum  for  their 

ent  with  their  duties  as  professors  services.       lb. 

and     practitioners.       Alexander     v.  (2)    See   note   to    §    2167    R.    S., 

Cincinnati,  2  H.   183.  supra. 

Sec.  2167 — 6R.  S.     [Meetings  of  the  trustees;  record;  report.] 

The  trustees  *  shall  hold  meetings  according  to  such  rule  as  they 
may  adopt;  they  shall  keep  a  record  of  their  proceedings;  and 
four  members  must  concur  in  any  act  of  the  board.  They  shall 
annually,  on  or  before  the  first  day  of  March,  make  a  report 
to  the  mayor  of  the  city  of  Cincinnati  of  their  management  of 
the  hospital,  its  condition  and  wants,  with  such  information  as 
to  the  patients  therein,  and  the  medical  and  surgical  treatment 
of  them,  as  said  trustees  may  deem  of  public  interest.  [58  v. 
151.] 

(1)    See    note    to    §    2167    R.    S.,  supra. 

4.  INFIRMARIES.1 

Sec.  2173  R.  S.     [Appointment  of  overseers  of  the  poor.]       The 

council  shall  provide  by  ordinance  for  the  appointment  by  the 
mayor,  subject  to  the  approval  of  the  council,  of  such  number 
of  persons  as  may  be  deemed  necessary,  not  to  exceed  one  in 
each  ward,  to  act  as  overseers  of  the  poor,2  and  shall  prescribe 
the  duties  of  such  persons  in  relation  to  the  care  of  the  poor. 


634  THE    OHIO    MUNICIPAL    CODE. 

and  their  removal,  when  necessary,  to  the  infirmary;  but  such 
persons  shall  not  receive  any  compensation  for  their  services: 
provided,  that  in  cities  of  the  first  grade  of  the  first  class,  the 
board  of  infirmary  directors2  may  divide  such  cities  into  dis- 
tricts, not  exceeding  six  in  number,  bounded  by  ward  -lines,  and 
may  appoint  one  overseer  of  the  poor  for  each  of  said  districts. 
Such  overseers  shall  act  under  the  supervision  of  said  board, 
and  shall  each  serve  such  length  of  time  not  exceeding  one  year, 
and  each  receive  such  pay,  not  exceeding  six  hundred  dollars 
per  annum,  as  said  board  shall  prescribe,  and  they  shall  be 
subject  to  removal  at  the  pleasure  of  said  board.  The  said 
overseers  shall  have  charge  of  the  poor  in  their  respective  dis- 
tricts, and  shall  recommend  in  writing  to  the  board  such  as- 
sistance as  they  may  deem  proper,  but  shall  not  themselves  be 
allowed  to  directly  furnish  the  assistance.  Said  board  shall 
also  have,  in  addition  to  the  powers  conferred  by  law  upon  all 
boards  of  infirmary  directors,  the  power  to  appoint  a  superin- 
tendent, clerk,  store-keeper,  physician,  and  matron,  and  to  pre- 
scribe their  duties,  fix  their  terms  of  office  and  compensation, 
and  also  to  remove  them  at  pleasure.  [1880,  February  25 :  77 
v.  16,  17;  Eev.  Stat.  1880;  72  v.  12,  §  302.] 

(1)   Title,  division  and  chapter,  enacted,  see  §  141  of  the  Code,  page 

—  Sections      under      this      heading  351. 

formed  part  of  Chap.  4,  Div.  6,  Ti-  Power  to  establish  and  main- 
tie  XII.,  R.  S.  All  the  sections  of  tain  infirmaries  is  conferred  upon 
this  chapter  as  given  in  the  Revised  all  municipalities  in  paragraph  16 
Statutes  are  left  unrepealed  except  of  §  7  of  the  Code,  page  55. 
§  2170  and  (2170-1).  §§  2180-1  to  Managing  board  for  infirmaries. 
2180-4,  inclusive,  relating  to  infirm-  In  cities,  see  §  141  of  the  Code,  page 
ary  debts  in  Cincinnati,  are  obso-  351.  In  villages,  see  §  204  of  the 
lete.  Code,  page  456. 

For    sections    on    Infirmaries    re- 

Sec.  2174  R.  S.  [Duties  of  infirmary  directors  in  case  of  partial 
relief.]  Upon  complaint  being  made  or  information  given  to 
the  directors,1  that  any  person  residing  in  the  city  is  in  a  con- 
dition that  requires  public  assistance  or  support,  said  directors 
shall  inquire  into  the  condition  and  necessities  of  such  person, 
and  if  satisfied  that  relief  ought  to  be  granted  at  public  expense, 
and  that  such  person  requires  temporary  or  partial  relief  only, 
and  that  for  any  cause  it  would  not  be  prudent  to  remove  such 
person  to  the  city  infirmary,  such  directors  may  afford  such  re- 
lief, at  the  expense  of  the  city,  without  such  removal ;  and  the 
directors  of  any  city  infirmary  have  the  same  power  of  remov- 
ing paupers  settled  in  some  other  county  in  this  state  which, 


CHARITABLE    AXD    REFORMATORY    INSTITUTIONS.  635 

by  law,  is  conferred  on  county  infirmary  directors.      [73  v.  233, 
§  22.] 

(1)   See  note  (2)  to  §  2173  R.  S.,  supra. 

Sec.  2174 — 1  R.  S.  [Lucas  county  may  give  outside  relief.] 
In  all  counties  containing  a  city  of  the  third  grade,  first  class, 
if  the  infirmary  directors,1  after  making  proper  investigation 
in  regard  to  any  case  brought  to  their  notice,  are  satisfied  that 
the  person  or  persons  are  in  a  condition  requiring  public  relief, 
and  the  circumstances  in  the  case  are  such  as  to  render  their 
removal  to  the  infirmary  inexpedient,  they  may  render  such 
other  relief  as  in  their  judgment  is  required ;  and  for  the  pur- 
pose of  avoiding  fraud  and  imposition  and  enabling  said  board 
to  intelligently  determine  what  persons  in  such  city  are  entitled 
to  public  relief ;  and  if  there  now  be  in  such  city  a  society  incor- 
porated under  the  laws  of  this  state,  any  part  of  the  purposes 
or  business  of  which  it  is  to  make,  inquire  into,  keep  and  fur- 
nish written  reports  of  the  condition  and  circumstances  of  per- 
sons living  within  such  city,  entitled  to,  or  demanding  public 
assistance,  or  relief,  said  board  of  infirmary  directors  is  hereby 
authorized  and  directed  to  enter  into  contract  with  such  society 
for  making  and  furnishing  to  such  board,  upon  its  written  requi- 
sition, reports  of  said  society,  upon  all  such  persons  within  said 
city  and  county,  demanding  of  said  board  public  relief;  and 
for  the  services  of  such  society  in  making  such  investigations 
and  reports,  said  board  is  hereby  authorized  to  pay  to  such  so- 
ciety not  to  exceed  the  sum  of  two  hundred  dollars  ($200.00) 
per  month,  and  the  same  shall  be  deemed  a  part  of  the  legitimate 
expenses  of  said  board,  and  be  allowed  by  the  county  commis- 
sioners and  auditor  and  paid  as  such.  [1902,  April  15 :  95  v. 
149.] 

(1)   See  note  (2)  to  §  2173  R.  S.,  supra. 

Sec.  2175  R.  S.  [Duties  of  city  infirmary  directors  in  case  of 
no  legal  settlement]  The  directors1  of  an  infirmary  erected 
and  established  in  any  city  for  the  accommodation  of  its  poor, 
shall  not  require  the  directors  of  the  county  infirmary  of  the 
county  in  which  such  city  is  situated,  to  receive  and  provide 
for  persons  having  no  legal  settlement  within  this  state,2  or 
whose  place  of  residence  is  unknown,  or  to  charge  the  commis- 
sioners of  the  county  with  the  expense  of  providing  for  such 
persons  in  the  city  infirmary;  but  the  directors  of  such  city 
infirmary  shall  furnish  relief  and  support  to  such  persons  in 
said  city  infirmary,  applying  therefor  the  same  as  county  in- 


636 


THE    OHIO    MUNICIPAL    CODE. 


firmary  directors  are  required  to  do,  and  have  like  power  of 
removing  such  persons  as  county  infirmary  directors  have  to 
such  other  city  or  county  infirmary  where  such  pauper's  legal 
settlement  is ;  but  the  provisions  of  this  section  shall  only  apply 
to  counties  in  which  there  is  a  countv  and  a  city  infirmary. 
[73  v.  233,  §  23.]  ' 


(1)  See  note  (2)  to  §  2173  R.  S., 
supra. 

(2)  Legal  settlement,  how 
gained. —  Residence  for  a  year  of 
pauper  is  necessary  and  it  must  be 
open  and  notorious.  Henrietta 
Twp.  v.   Brownhelm  Twp.,  9  O.   76. 

But  the  authorities  do  not  have 
to  be  informed;  bona  fide  residence 
is  all  that  is  necessary.  Henrietta 
Twp.  v.  Oxford  Twp.,  2  0.  S.  32. 

Residence  must  be  accompanied 
with  the  intention  to  make  it  the 
place  of  abode.     lb. 

How     lost. —  Settlement    is    not 


lost  by  residing  elsewhere  for  a 
year,  provided  there  is  an  intention 
to  return.     lb. 

By  voting  in  another  state  and 
acquiring  a  legal  settlement  there, 
the  former  legal  settlement  is  lost. 
Crane  Twp.  v.  Antrim  Twp.,  12  O. 
S.  430. 

Pauper,  who  is. —  One  having 
credit  and  no  property  is  not  a  pau- 
per. Beach  v.  Marion  Twp.,  2  W. 
L.  M.,  95.  But  one  having  prop- 
erty elsewhere,  but  who  is  unable 
to  support  himself,  is  entitled  to  re- 
lief.    76. 


Sec.  2176  R.  S.  [Concerning  orphan  asylums  in  cities  of  the 
first  and  second  class.]  In  all  cities  in  which  orphan  asylums 
have  been  or  may  be  established  by  law,  or  as  private  institu- 
tions, the  directors  1  of  the  city  infirmary  or  other  persons 
having  charge  of  the  poor  in  such  cities,  may  make  such  ar- 
rangements with  the  trustees  or  the  person  having  charge  of 
said  asylums,  for  the  support  and  education  of  all  orphan  or 
other  children  coming  under  their  control  by  virtue  of  the  laws 
in  force  at  the  time,  as  they  deem  proper,  and  shall  allow  such 
compensation  as  is  reasonable  and  just,  to  be  paid  out  of  the 
poor  fund  of  such  city.2      [51  v.  412,  §  2 ;  S.  &  C.  891.] 


(1)  See  note  (2)  to  §  2173  R.  S., 
supra. 

(2)  §§  2177,  2178,  2179,  and 
2180  R.  S.  were  repealed  in  77  O. 
L.,     16.       Sections    2180-1,     2180-2, 


2180-3,  and  2180-4  provided  for  the 
payment  of  certain  former  debts 
and  warrants  against  the  infirmary 
in  the  city  of  Cincinnati,  and  are 
now  obsolete. 


5.  CHILDBED'S  HOMES.1 

Sec.  2181  R.  S.  [Powers  of  trustees  and  managers.]  In  cities 
of  the  first  and  second  class,  where  children's  homes  or  indus- 
trial schools  may  be  established  under  the  incorporation  law 


CHARITABLE    AND    REFORMATORY    INSTITUTIONS.  637 

of  the  state,  the  trustees  and  managers  of  such  institutions  may 
take  under  their  guardianship  all  children  who  may  be  placed 
under  their  care  and  management  in  either  of  the  following 
modes : 

First.  Children  under  sixteen  years  of  age,  who  are  volun- 
tarily surrendered  by  the  father  and  mother,  or  in  case  of  the 
death,  or  long  continued  or  willful  absence  of  the  father,  by  the 
mother,  or  by  their  guardians,  to  the  care  of  such  trustees  and 
managers,  they  being  by  virtue  of  such  surrender  invested  with 
the  same  power  over  the  persons  of  the  children  as  the  parents 
or  guardians. 

Second.  Children  under  sixteen  years  of  age  who,  upon  the 
application  of  the  trustees  and  managers,  may  be  committed  to 
their  care  by  any  judge  of  probate  court,  or  mayor  of  such 
city,  on  account  of  vagrancy  or  exposure  to  want  and  suffering, 
or  neglect  or  abandonment  by  their  parents  or  guardians.,  or 
other  persons  having  custody  of  such  children,  or  in  accordance 
with  the  request  of  their  mother  or  next  friend  in  case  of  the 
habitual  intemperance,  abuse,  or  neglect  of  their  father;  and 
such  judge  of  probate  court,  or  mayor,  so  committing  any  child 
to  the  care  of  the  trustees  and  managers,  shall  annex  to  the 
commitment  an  abstract  of  the  evidence  taken  by  him  and  on 
which  his  adjudication  was  founded,  which  evidence  shall  have 
been  taken  under- oath.      [63  v.  51,  §  1 ;  S.  &  S.  726.] 

( 1 )   Title,  division  and  chapter.  and    none    are    re-enacted    by    the 

—  Sections     carried     here     formed  Cede. 

Chap.   5,   Div.   6,   Title   XII.   R.   S.  Aid   of  children's   homes.— See 

None  of  these  sections  are  repealed  §  929-1  R.  S.,  supra,  page  609. 

Sec.  2182  R.  S.  [May  act  as  guardian  of  children,  and  procure 
them  homes.]  The  trustees  and  managers  shall  have  the  guar- 
dianship of  such  children  during  their  minority,  and  may, 
when  it  may  seem  proper,  place  them  in  suitable  homes,  having 
scrupulous  regard  to  the  religious  and  moral  character  of  the 
persons  with  whom  such  children  are  placed,  in  order  to  secure 
to  them  the  benefits  of  good  example  and  wholesome  instruc- 
tion, and  the  opportunity  of  becoming  intelligent  and  useful 
men  and  women.      [63  v.  51,  §  2 ;  S.  &  S.  727.J 

Sec.  2183  R.  S.  [And  may  indenture  them;  record  of  age, 
parentage,  etc.,  must  be  kept.]  The  trustees  and  managers  shall 
require  an  agreement  to  be  entered  into,  that  each  and  every 
child  so  placed  shall  be  furnished  with  good  and  sufficient 
food  and  clothing  and  a  suitable  common  school  education ;  the 
trustees  and  managers  may  indenture   any  such  child  when 


638  THE    OHIO    MUNICIPAL    CODE. 

in  their  judgment  it  may  seem  best,  and  shall  provide  them- 
selves with  books,  in  which  shall  be  entered  the  age,  parentage, 
place  of  residence,  and  present  condition  of  every  child  received 
in  any  such  children's  home  or  industrial  school;  and  they 
shall  also  cause  to  be  entered  in  such  books  the  time  when, 
the  place  where,  and  the  person  to  whom  any  of  the  inmates 
of  such  children's  home  or  industrial  school  have  been  placed 
for  suitable  homes,  or  indentured,  together  with  a  substantial 
statement  of  any  contract  made  between  such  trustees  and 
managers,  and  the  person  receiving  such  child.  [63  v.  51,  §  3 ; 
S.  &  S.  727.] 

Sec.  2184  K.  S.  [Assignment  of  services  and  cancellation  of 
contracts.]  Any  person  receiving  such  child  from  the  trustees 
and  managers  of  such  institution,  shall  not  assign  or  transfer 
his  services  for  any  period  without  the  written  consent  of  the 
trustees  and  managers ;  and  if,  for  any  cause,  a  person  so 
taking  charge  of  a  child,  desires  to  be  released  from  the  con- 
tract, the  trustees  and  managers,  upon  application,  may  cancel 
the  same,  and  resume  the  charge  and  management  of  the  child, 
and  shall  have  the  same  power  and  authority  over  him  as  before 
the  agreement  was  made.      [63  v.  51,  §  4;  S.  &  S.  727.] 

Sec.  2185  It.  S.  [Trustees  may  remove  children  from  unsuitable 
homes.]  The  trustees  and  managers  may  remove  a  child  from 
a  home  when,  in  their  judgment,  the  same  has  become  an  un- 
suitable one,  and  they  shall,  in  such  cases,  resume  the  same 
power  and  authority  as  they  originally  possessed ;  but  they  may 
return  a  child  to  parents  or  a  surviving  parent  or  guardian,  or 
when  they  believe  the  child  to  be  capable  of  caring  and  provid- 
ing for  himself,  may  discharge  him  to  his  owr*  care*  [63  v. 
51,  §  5 ;  S.  &  S.  727.] 


639 
6.     SOLDIERS'  BELIEF. 

Sec.  3107 — 1 R.  S.  [Bounty  for  re-enlisted  veteran  volun- 
teers.] *  The  commissioners  of  the  several  counties,  the  trus- 
tees of  the  several  townships,  and  the  city  council  of  the  several 
cities  of  this  state,  are  hereby  authorized  and  required  to  issue 
to  each  re-enlisted  veteran  volunteer2  who  has  heretofore  been 
credited,  as  shown  by  the  muster  and  descriptive  rolls,  or  oth- 
erwise, upon  the  quota  of  such  county,  township,  or  city,  or 
any  ward  of  such  city,  under  any  requisition  of  the  president 
of  the  United  States  for  volunteers  during  the  late  rebellion, 
and  who  has  not  received  any  local  bounty  upon  said  enlist- 
ment, a  warrant  for  the  sum  of  one  hundred  dollars,  or  a  bond 
for  a  like  sum  bearing  six  per  cent,  interest,  redeemable  at 
the  pleasure  of  such  commissioners,  trustees,  city  councils,  one 
year  after  the  date  thereof;  and  when  such  veteran  volunteer 
has  been  credited  upon  the  quota  of  the  state  at  large,  or  has 
been  so  indefinitely  credited  as  that  the  credit  could  only  pass 
to  the  state  as  shown  by  the  muster  and  descriptive  rolls,  then 
the  auditor  of  state  is  hereby  authorized  and  required  to  issue 
his  warrants  upon  the  state  treasury  to  such  volunteer  for  the 
sum  of  one  hundred  dollars,  which  shall  be  paid  by  the  treas- 
urer of  state  out  of  any  funds  in  the  treasury  not  otherwise 
appropriated;  and  in  all  cases  where  such  volunteer  has  re- 
ceived a  bounty  of  less  sum  than  one  hundred  dollars  on  such 
enlistment,  then  it  shall  be  the  duty  of  the  state  auditor,  county 
commissioners,  township  trustees,  or  city  councils,  as  the  case 
may  be,  to  issue  a  warrant,  or  bond,  as  above  specified,  to  such 
volunteer  for  the  difference  between  the  amount  already  re- 
ceiyed,  and  the  amount  he  would  by  this  act  be  entitled  to 
receive,  if  he  had  not  received  any  such  bounty.  To  determine 
the  number  of  those  credited  to  congressional  districts,  that 
properly  belong  to  each  county  of  the  district,  the  adjutant-gen- 
eral is  hereby  required  to  apportion,  among  the  several  counties 
of  each  district,  the  number  so  assigned,  in  proportion  to  popu- 
lation, and  notify  the  county  commissioners  of  the  number 
assigned  to  their  several  counties ;  the  commissioners  shall  then 
proceed  as  required  in  this  section ;  provided,  that  any  county 
having  previously  paid  the  bounty  to  any  volunteer  credited  to 
the  congressional  district,  shall  deduct  the  amount  so  paid  from 
the  amount  to  be  levied  on  said  county;  provided,  however, 
when  the  muster  and  descriptive  rolls  were  not  received  by  the 


640  THE    OHIO    MUNICIPAL    CODE. 

adjutant-general  in  time  for  the  oredit  therein  shown  to  be  ap- 
plied upon  any  quota,  then  the  auditor  of  state  shall  issue  his 
warrant  on  the  state  treasury  in  favor  of  such  soldier,  as  in  the 
case  of  credits  to  the  state  at  large.  And  in  all  cases  where  the 
commissioners  of  any  county,  the  trustees  of  any  township,  or 
the  council  of  any  city,  in  this  state,  has  promised  to  any 
volunteer,  under  any  requisition  of  the  president,  a  bounty,  and 
such  volunteer  has  received  from  such  county,  township,  or 
city,  in  settlement  of  such  a  bounty,  or  any  part  thereof,  any 
bond,  certificate,  scrip,  or  promise  to  pay,  in  writing,  by  the 
provisions  of  which  payment  was  to  be  made,  in  case  any  subse- 
quent legislation  should  authorize  such  commissioners,  trus- 
tees, or  council  to  levy  a  tax  for  the  payment  of  the  same, 
and  such  bond,  certificate,  scrip,  or  promise  in  writing  has  not 
been  paid  for  want  of  such  authority  by  the  legislature,  or 
for  any  other  reason,  and  said  bond,  certificate,  scrip,  or  prom- 
ise in  writing,  has  not  been  by  such  volunteer  sold  or  assigned, 
then  such  commissioners,  trustees,  or  council  shall  issue  to  such 
volunteer,  or  in  case  of  his  death,  then  to  his  legal  representa- 
tives, a  warrant  for  the  amount  of  said  bond,  certificate,  scrip, 
or  promise  in  writing,  together  with  the  interest  thereon  from 
the  date  of  issue  thereof,  or  a  bond  for  a  like  sum,  redeemable 
as  herein  provided;  and  in  case  of  the  loss  or  destruction  of 
said  bond,  certificate,  scrip,  or  promise-  in  writing,  the  person 
entitled  thereto  shall  make  affidavit  of  said  loss  or  destruction, 
and  that  the  same  has  not  been  sold  or  assigned  before  such 
person  shall  receive  said  warrant  or  bond  as  aforesaid ;  provid- 
ed, that  this  act  shall  not  be  construed  so  as  to  allow  any  such 
re-enlisted  veteran  volunteer  who  has  already  received  the 
bounty  provided  for  by  the  act  to  which  this  is  amendatory,  or 
who  has  received  one  hundred  dollars  bounty  from  the  state,  or 
any  county,  township,  or  city  under  any  prior  act;  nor  shall 
lapse  of  time  or  state  equities  be  set  up  as  a  defense  to  any 
claim  made  under  this  act,  or  of  any  act  to  which  this  is  amen- 
datory,3 or  any  act  relating  to  this  subject,  and  where  said 
trustees  of  townships,  city  councils  or  county  commissioners 
have  not  issued  said  bond,  certificate  or  promise  in  writing,  to 
such  re-enlisted  veteran  volunteer,  they  are  hereby  required  to 
do  so.  Nor  shall  it  apply  to  actions  now  pending  in  court. 
[1889,  April  3:  86  v.  193;  77  v.  294;  Rev.  Stat.  1880;  64 
v.  231  (S.  &  S.  478).] 


641 

(1)  Validity. —  The  act  of  April  as  to  the  time  within  which  a  writ 
6,  1866,  providing  for  the  payment  of  mandamus  may  be  obtained,  and 
of  bounties  was  held  constitutional.  a  demurrer  to,  an  answer  setting  up 
State  v.  Comm'rs  17  0.  S.  608;  statute  of  limitation  of  six  years, 
State  v.  Richland  Tpv  20  O.  Sc  362.  was  sustained.      Chinn  v.   Trustees, 

(2)  "  Re=enlisted  veteran  voI=  32  O.  S.  236. 

unteers  "    under    the   act   of   April  A  right  of  action  given  by  a  stat- 

16,   1880,  did  not  include  "  veteran  ute,  and  existing  at  the  time  of  the 

volunteers  "  who  at  the  time  of  their  amendment    or    repeal    of   the    stat- 

enlistment  were  not  in  the  field  as  ute,  is  not  affected  by  the  amend- 

veteran    volunteers.      State    v.    Og-  ment  or  repeal,  unless  otherwise  ex- 

levie,  36  0.  S.  394.  pressly  provided  in  the  amending  or 

(3)  Limitation. —  There  is  in  repealing  act.  State  v.  Washington 
this   state,    no  statutory   limitation  Tp.,  24  O.  S.  603. 

Sec.  3107 — 2R.  S.  [Or  the  families  of  those  who  have  died.] 
If  any  such  veteran  volunteer  shall  have  died  before  receiving 
the  bond  or  warrant  to  which  he  would  have  been  entitled  un- 
der the  first  section  [§  (3107 — 1)]  of  this  act,  it  shall  be  given 
as  follows  :  First,  to  his  widow ;  if  no  widow,  then  to  his  chil- 
dren ;  if  no  children,  to  his  mother ;  if  no  mother,  to  his  father ; 
if  no  father,  to  dependent  brothers  and  sisters,  of  less  than  fif- 
teen years  of  age;  but  no  money  shall,  by  this  act  be  paid  to 
any  one  who  has  deserted  the  military  service,  or  has  at  any 
time  left  the  state  to  evade  or  escape  the  draft.  [64  v.  231 ; 
S.  &  S.  478.] 

Sec.  3107 — 3  K.  S.  [Bonds,  how  executed.]  Said  bonds,  when 
issued  by  the  county  commissioners,  shall  be  signed  by  the 
commissioners,  countersigned  by  the  county  auditor;  when 
issued  by  the  trustees  of  any  township,  shall  be  signed  by  the 
trustees,  and  countersigned  by  the  clerk  of  the  township;  and 
when  issued  by  city  councils,  shall  be  signed  by  the  president 
and  countersigned  by  the  clerk  of  such  council,  and,  as  soon 
as  practicable,  delivered  to  said  volunteers,  or  the  parties  afore- 
said, in  the  order  named.      [64  v.  231 ;  (S.  &  S.  478).] 

Sec.  3107 — 4  R.  S.  [Tax  to  pay  same.]  For  the  purpose  of 
paying  said  bond  or  warrants,  the  county  commissioners  of 
any  county,  the  trustees  of  any  township,  and  the  city  council 
of  any  city,  issuing  the  same,  shall  levy  such  tax  each  year 
after  issuing  the  same,  as  may  be  required  to  pay  one-third  of 
the  amount  of  each  warrant  or  bond  with  interest;  and  said 
levy  shall  be  certified  to  the  auditor  of  the  county,  and  shall 
be  entered  upon  the  duplicate  and  collected  as  other  taxes,  and 
the  money  raised,  thereby  for  the  several  counties,  shall  be  re- 


642  THE    OHIO    MUNICIPAL    CODE. 

tained  in  the  county  treasuries,  and  that  collected  for  the 
several  townships  and  cities  shall  be  assigned  to  such  townships 
and  cities,  and  paid  out  by  said  several  authorities  as  other 
funds  are  required  to  be  paid  out  in  said  bonds :  provided,  that 
the  commissioners  of  any  county,  trustees  of  any  township,  or 
city  council  of  any  city,  may,  if  they  deem  the  same  expedient, 
levy  a  larger  amount  in  any  one  year  than  would  be  sufficient 
to  pav  one-third  of  the  bonds  or  warrants  so  issued.  [64  v. 
231 ;  S.  &  S.  478.] 

Sec.  3107 — 5  R.  S.  [Construction  of  act  amended.]  Section 
one  of  the  above  recited  act  to  which  this  act  is  supplementary, 
shall  be  held  and  construed  so  as  to  include  within  its  terms  and 
provisions  the  same  benefits  to  be  given  to  re-enlisted  veteran 
non-commissioned  officers  and  soldiers  of  the  United  States 
regular  army  as  to  state  volunteers,  where  such  men  of  the 
regular  army  are  shown  to  be  Credited  as  required  by  said 
act  to  which  this  act  is  supplementary.      [QQ  v.  65.] 

Sec.  3107 — 6  R.  S.  [Evidence  in  bounty  cases.]  The  cer- 
tificate of  the  adjutant-general  of  the  state  of  Ohio,  when  it 
appears  from  the  records  of  his  office  that  the  applicant  reen- 
listed  in  the  service  of  the  United  States,  specifying  dates  and 
the  locality  to  which  the  applicant  was  credited,  shall  be  taken, 
for  all  purposes  under  the  act  to  which  this  is  supplementary, 
as  prima  facie  evidence  of  his  having  reenlisted,  as  and  of  his 
being  a  veteran  volunteer  within  the  meaning  of  said  act, 
and  of  his  having  been  credited,  as  required  to  be  shown  by 
said  act,  upon  such  reenlistment,  to  the  county,  township,  city, 
or  ward  of  the  city  named  in  said  certificate,  and  upon  the 
quota  thereof  under  a  requisition  of  the  president  of  the  United 
States  for  volunteers  during  the  late  rebellion.  [90  v.  64;  82 
v.  119.] 

Sec.  3107 — 7  R.  S.  [Value  of  certain  documents  as  evidence.] 
The  papers,  documents,  books  and  records  on  file  or  deposited 
in  the  office  of  said  adjutant-general,  or  the  office  of  the  adju- 
tant-general of  the  United  States,  shall,  for  all  purposes  under 
said  act,  be  admissible  in  evidence,  and  such  papers,  docu- 
ments, books  and  records,  or  any  transcript,  copy,  statement  or 
abstract  of  the  same,  or  any  part  thereof,  certified  to  be  such  by 
said  officer  in  whose  office  said  originals  shall  thus  be  on  file  or 
deposit,  or  his  assistant  under  the  seal  of  such  officer  or  office, 
shall  be  competent  and  prima  facie  evidence  of  the  facts  and 
matters  therein  contained,  so  far  as  the  same  may  be  pertinent 
to  the  issue  or  claim.      [90  v.  64;  82  v.  119.] 


643 

Sec.  3107 — 8  R.  S.     [Application    of   two   preceding   sections.] 

The  provisions  of  this  act  shall  apply  to  all  such  transcripts, 
copies,  statements  or  abstracts  heretofore  or  hereafter  thus 
made  and  certified,  and  to  all  proceedings  or  actions  now  pend- 
ing or  hereafter  brought,  under  the  provisions  of  the  act  to 
which  this  is  supplementary,  or  any  previous  act  or  acts  upon 
the  same  subject,  or  any  such  act  hereafter  passed  while  this 
act  shall  remain  in  force.      [90  v.  64;  82  v.  119.] 

Sec.  3107 — 48  R.  S.  [Preference  of  appointment  in  public  serv- 
ice to  be  given  to  honorably  discharged  soldiers  and  sailors.] 
In  every  public  department,  and  all  public  departments  in  all 
municipal  corporations,  and  upon  all  public  works  of  the  state 
of  Ohio,  honorably  discharged  soldiers,  sailors  and  marines  of 
the  United  States  shall  be  preferred  for  appointments  and  em- 
ployment; age,  loss  of  limb  or  other  physical  impairment,  which 
does  not,  in  fact,  incapacitate,  shall  not  be  deemed  to  disqualify 
them;  provided,  however,  that  the  applicant  shall  have  been  a 
resident  of  the  county  in  which  the  office  or  position  is  located, 
for  at  least  one  year,  and  possesses  the  other  requisite  qualifi- 
cations.1     [94  v.  157;  92  v.  50;  85  v.  149.] 

(1)    Mandamus  does  not  lie. —      ex   rel.   v.    Comm'rs,    57    O.    S.    86; 
The   provisions   of   this    act   cannot      Brady  v.  French,  6  N.  P.  127. 
be    enforced    by    mandamus.      State 


Sec.  3107 — 49  R.  S.  [Penalty.]  Any  violation  of  the  provi- 
sions of  this  act  shall  be  deemed  a  misdemeanor,  and  upon 
conviction  in  any  court  of  competent  jurisdiction,  shall  be 
punishable  by  a  fine  of  not  less  than  fifty  dollars  ($50.00)  and 
not  more  than  one  hundred  dollars  ($100.00).      [92  v.  50.] 

For  act  relating  to   Soldiers'  re-       from  wards  in  cities,  see  §§  3107-51 
lief    committees    in    counties,    some      to  3107-54  R.  S.,  inclusive, 
members     of    which     are   appointed 


644  THE    OHIO    MUNICIPAL    CODE. 


V 
WATER  WORKS.1 

Sec.  2411 — 1  R.  S.  [Purposes  for  which  water  rents  may  be 
assessed  and  collected  in  Cincinnati.]  2  In  cities  of  the  first 
grade  of  the  first  class,  for  the  purpose  of  paying  the  expenses 
of  conducting  and  managing  the  water  works;  and  to  provide 
for  paying  the  expenses  of  making  all  betterments,  enlarge- 
ments and  improvements  of  the  works,  including  the  building  of 
machinery,  buildings,  tanks,  towers,  reservoirs,  or  any  other 
water  works  appliances,  or  the  repair  of  the  same,  or  of  the 
extensions  of  the  works  and  reservoirs,  or  any  additions  thereto, 
or  the  laying,  extending  or  enlarging  of  the  water  mains;  and 
to  provide  for  the  payment  of  the  interest  of  any  loan  heretofore 
or  hereafter  made  for  the  purchase,  lease,  construction,  im- 
provement, betterment,  enlargement  or  extension  of  any  part 
of  the  water  works  system  of  such  city,  or  for  the  creation  of 
a  sinking  fund  for  the  liquidation  of  the  debt  heretofore  or 
hereafter  made  for  any  of  these  purposes;  and  to  provide  for 
the  payment  of  the  interest  and  the  creation  of  a  sinking  fund 
for  the  payment  of  any  renewal  or  extension  bonds  heretofore  or 
hereafter  issued,  in  lieu  of  water  works  bonds  which  may 
have  matured,  or  which  may  mature,  and  for  the  payment 
of  which  no  provision  may  have  been  made  at  the  time  of  their 
maturity,  and  notwithstanding  ordinances  authorizing  such  re- 
newal or  extension  bonds  may  provide  for  the  payment  of  the 
interest  and  the  creation  of  a  sinking  fund  therefor,  by  taxa- 
tion; and  to  provide  for  the  payment  of  the  interest  and  the 
creation  of  a  sinking  fund,  for  the  payment  of  bonds  heretofore 
or  hereafter  issued,  for  water  works  purposes,  or  for  the  pur- 
pose of  laying  water  mains,  by  villages  which  have  already  been 
or  which  may  hereafter  be  annexed  to  any  such  city,  and  not- 
withstanding that  such  bonds  may  have  been  issued  under  acts 
requiring  the  payment  of  the  interest  thereon,  or  the  creation  of 
a  sinking  fund  therefor,  by  taxation;  and  to  provide  for  the 
payment  of  any  contract  obligations  hereafter  entered  into  by 
the  board,  or  any  other  authorized  board,  hereinafter  referred 


WATER    WORKS.  645 

to  with  any  person,  company  or  corporation,  their  successors  ur 
assigns,  for  the  construction  of  water  works,  or  additions,  en- 
largements, improvements  or  extensions  to  the  water  works; 
and  to  provide  for  the  payment  of  any  contract  obligations  here- 
after entered  into  by  the  board  hereinafter  referred  to  or  any 
other  authorized  board,  with  any  person,  company  or  corpora- 
tion, their  successors  or  assigns,  for  the  lease  of  water  works,  or 
additions.,  enlargements,  improvements  or  extensions  to  the 
water  works;  and  to  provide  for  the  payment  of  any  land, 
turnpike,  highway  or  franchise  of  any  description,  or  any  ease- 
ment or  interest  in  any  of  the  same,  which  may  be  necessary  at 
any  time  for  the  purpose  of  extending,  enlarging  or  improving 
the  water  works,  or  making  additions  thereto ;  the  board  having 
charge  of  the  water  works  of  such  city,  shall  have  the  power 
to  assess  and  collect,  from  time  to  time,  a  water  rent  of  sufficient 
amount,  in  such  manner  as  it  deems  most  equitable  upon  all 
tenements  and  premises  supplied  with  water,  and  where  more 
than  one  tenant  or  water  taker  is  supplied  with  water  from  one 
hydrant,  or  off  the  same  pipe,  and  when  the  assessments  there- 
for shall  not  be  paid  when  due,  the  board  shall  look  directly 
to  the  owner  of  the  property  for  the  entire  rent,  or  so  much 
thereof  as  remains  unpaid  for  water  furnished  said  premises, 
to  be  collected  in  the  same  manner  as  other  city  taxes.  [92 
v.   605.] 

( 1 )    Sections  on   water  works.  power   to  appropriate   property   for 

Sections  carried  under  this  heading  water    works   purposes    is   given    in 

formed  part  of  Chap.  1,  Div.  8,  Ti-  §   10  of  the  Code,  page  81. 

tie  XII.   R.  S.     Of  the  sections  in  Power  to   contract  with   com= 

this    chapter,    §§    2409,   2410,   2411,  pany   for  furnishing  water  to  mu- 

2412    to    2417,    inclusive,    2418    to  nicipality  see  §  45  of  the  Code,  page 

2423,   inclusive,  2425  to  2435  inclu  173,  and   §   3551   R.   S.,   under  Gas 

sive  are  incorporated  in  §  205  of  the  and  Water  Companies,   infra. 

Code,    which    see;    §§     (2435-1)    to  (2)    Validity.— This      act      was 

(2435-18),  inclusive,  the  Cincinnati  held  valid  in  Alter  v.  Cincinnati,  56 

Water  Works    act,  are  mentioned  in  O.   S.  47. 

§  215;  these  latter  sections  are  car-  Power    to    apply    water    rents 

ried      here.     All      other      sections,  to   betterments   and   extinguishment 

(except  §§  (2411-1)  and  2424,  which  of  debt,  given  in  this  section  to  Cin- 

are   carried   here)    are   repealed   by  cinnati,    is   conferred   upon   all   mu- 

the  Code.  nicipalities    in    paragraph    15    of    § 

Power  to  establish  and  main=  7  of  the  Code,  page  54. 

tain  water  works  is  conferred  upon  Section    construed. —  See    Ram- 

al!   municipalities   in  paragraph   15  sey  v.   Columbus,   12  Dec.   725. 
of   §   7   of  the   Code,   page  54;   and 


646  THE    OHIO    MUNICIPAL    CODE. 

Sec.  2424  R.  S.  [Waterworks  m  contiguous  cities  and  villages, 
construction  and  regulation  thereof.]  Such  aqueducts  1  and  pipes 
shall  be  so  constructed  and  laid  as  not  to  interfere,  unneces- 
sarily, with  the  use  of  such  streets,  alleys,  and  public  grounds, 
as  public  highways  and  public  grounds ;  and  the  city  or  village 
so  establishing  any  part  of  its  water  works  within  the  limits  of 
such  other  city  or  village  shall  have  jurisdiction  to  prevent  or 
punish  any  pollution  of,  or  injury  to  the  water  so  conveyed, 
or  of  the  stream  or  source  from  which  the  same  is  obtained, 
or  any  injury  to  any  portion  of  the  water  works  so  located 
within  the  limits  of  such  other  city  or  village.  [66  v.  203 
(208),  §  351;  (S.  &  C.  1538).] 

(1)    See   §    2423   re-enacted   in   §  205  of  the  Code,  page  465. 

Cincinnati  Water  Works  Act.1 

Sec.  2435 — 1  R.  S.  [Waterworks  commission  for  Cincinnati.]2 
§  1.  Whenever  in  any  city  of  the  first  grade  of  the  first  class,  the 
board  of  administration  if  there  be  one,  and  if  not,  the  board 
having  charge  of  the  water  supply  of  such  city  shall,  by  a  reso- 
lution passed  by  a  majority  of  the  members  thereof,  declare  that 
it  is  necessary  to  provide  water  works  for  such  city,  if  there  be 
no  existing  water  works,  or  shall  declare  that  a  material  en- 
largement, extension,  improvement  or  addition  to  the  existing 
water  works  of  such  city  is  required,  if  there  be  existing  water 
works  of  such  city,  it  shall  certify  such  resolution  to  the  gov- 
ernor of  the  state,  and  thereupon  it  shall  be  his  duty  to  appoint 
a  board  of  trustees  to  be  known  as  the  "  commissioners  of  water 
works,"  composed  of  five  citizens,  residents  of  such  city,  not 
more  than  three  of  whom  shall  belong  to  the  same  political 
party.  All  vacancies  in  the  office  of  commissioner  shall  be 
filled  in  the  same  manner  as  the  original  appointment,  but  so 
that  not  more  than  three  of  such  commissioners,  when  such  va- 
cancy shall  have  been  filled,  shall  belong  to  the  same  political 
party.      [92  v.  606.] 

(1)  The  Cincinnati  water  Investigation  and  plans. — It' 
works  act  is  explicitly  left  in  force  was  held  under  a  former  act  that 
by  §  215  of  the  Code,  page  481.              the    old    board    of    administration 

For  special  act  authorizing  com-  could   employ   engineers   to   investi- 

missioners     to     borrow     additional  gate  needs  and  submit  plans.    Cin- 

$1,500,000,  see  97  O.  L.  620.  cinnati  v.  Cincinnati,  11  C.  C.  309. 

(2)  Validity. — The  entire  act,  Railway  through  grounds, 
except  §  8,  was  held  constitutional  power  of  commissioners  to  grant 
in  Alter  v.  Cincinnati,  56  O.  S.  47.  right  for,   se     Ampt  v.   Cincinnati, 

15  Dec.  237;  2  N.  P.  (N.  S.)  489. 

Sec.  2435 — 2  R.  S.  [Bond;  salary;  must  not  be  interested  in 
contracts  made  by  board.]     §  2.    Each  of  said  commissioners 


WATER    WORKS.  .  Gi7 

shall  enter  into  bond  to  the  city,  with  at  least  three  sureties  to 
the  satisfaction  of  the  mayor  as  to  the  sufficiency,  and  of  the 
corporation  counsel  as  to  form,  in  the  sum  of  one  hundred 
thousand  ($100,000)  dollars,  conditioned  for  the  faithful  dis- 
charge of  his  duties;  and  the  bond  so  taken  shall  be  deposited 
with  the  treasurer  of  the  city  for  safe  keeping.  Each  of  said 
commissioners  shall  receive  as  compensation  for  his  services, 
four  thousand  ($4,000)  dollars  per  annum,  which  shall  be 
paid  out  of  the  fund  hereinafter  created,  or  by  the  contracting 
parties  hereinafter  provided  for.  No  commissioner,  or  person 
holding  appointment  under  said  commissioners,  shall  be  inter- 
ested directly  or  indirectly,  in  any  contract  entered  into  under 
the  provisions  of  this  act  Any  commissioner  may  be  removed 
for  misfeasance,  malfeasance,  or  nonfeasance  in  the  manner 
provided  for  the  removal  of  certain  officers  in  chapter  3,  divi- 
sion 4,  of  title  12,  of  the  Revised  Statutes  of  Ohio,  and  the 
acts  that  may  be  passed  amendatory  and  supplementary  thereto. 
[92  v.  606.] 

Sec.  2435 — 3K.  S.  [Apportionment;  duties.]  §  3.  The  gov- 
ernor may  appoint  as  one  of  the  said  five  commissioners,  a  mem- 
ber of  the  board  of  administration  of  such  city ;  if  there  be  such 
a  board  and  if  such  appointment  be  made,  such  commissioner 
shall  give  the  same  bond  as  required  by  section  2  [§(2435 — 2)] 
of  this  act,  and  shall  receive  as  compensation  the  sum  of  two 
thousand  ($2,000)  dollars  per  annum.  The  duties  imposed 
upon  such  commissioner  and  the  compensation  paid  to  such 
commissioner,  shall  be  in  addition  to  the  duties  and  compensa- 
tion of  such  commissioner  as  a  member  of  said  board  of  ad- 
ministration;  and  the  duties  of  such  commissioner,  as  a  mem- 
ber of  the  board  of  administration,  as  provided  by  law,  shall 
not  be  construed  as  being  in  conflict  with  the  duties  of  such 
commissioner,  under  the  provisions  of  this  act.      [92  v.  606.] 

Sec.  2435 — 4R.  S.  [Organization.]  §  4.  Said  commission- 
ers shall  form  a  board,  and  shall  choose  one  of  their  number 
president,  and  a  majority  of  said  board  shall  constitute  a 
quorum  to  transact  business.  Said  board  shall  hold  regular 
meetings  at  such  time  and  places  as  it  may  agree  upon,  and 
special  meetings  under  such  regulations  as  it  may  prescribe; 
and  shall  cause  to  be, kept  a  full  and  accurate  account  of  its 
entire  proceedings,  including  an  account  of  its  receipts  and 
expenditures,  if  any,  and  make  a  report  of  such  receipts  and 
expenditures,  annually  to  the  mayor  and  board  of  legislation 
of  such  city.      [92  v.   606.] 


648  THE    OHIO    MUNICIPAL    CODE. 

Sec.  2435 — 5  R.  S.  [Commissioners  to  take  up  plans,  surveys, 
etc.]  §  5.  Said  commissioners  are  authorized  to  take  up  and 
consider  the  surveys,  plans  and  specifications,  if  any,  thereto- 
fore made  or  devised  for  water  supply,  and  they  may  cause 
such  additional  investigations,  surveys,  plans  and  specifications 
to  be  made,  as  they  may  deem  necessary,  and  after  consideration 
thereof,  they  may  adopt  definite  plans  and  specifications  pro- 
viding for  the  construction  of  such  works,  if  there  be  none 
existing,  or  for  an  enlargement,  extension,  improvement  or 
addition  to  existing  water  works,  either  within  or  without  the 
limits  of  the  city  or  state,  including  reservoirs,  buildings,  tun- 
nels, pumping  engines  and  machinery  of  all  kinds,  pipes,  and 
other  fixtures,  appliances  or  facilities,  as,  in  their  opinion,  are 
necessary  to  secure  an  abundant  supply  of  pure  and  wholesome 
water ;  and  said  commissioners  may  also  determine  the  location 
of  any  of  such  enlargements,  extensions,  improvements  or  ad- 
ditions.     [92  v.  606.] 

Sec.  2435 — 6R.  S.  [Purchase  or  condemnation.]  §6.  Said 
commissioners  are  authorized  to  acquire  by  purchase  or  by  the 
proceedings  hereinafter  mentioned,  on  behalf  of  such  city,  all 
real  and  personal  property  and  franchises  necessary  for  the 
proper  construction  of  water  works,  if  there  be  none  existing, 
and  for  the  enlargement,  extension,  improvement,  or  addition 
to  existing  water  works ;  and  whenever,  for  such  construction  or 
the  completion  of  any  part  or  parts  of  such  enlargements,  ex- 
tensions, improvements  or  additions,  it  shall  be  necessary  to  use 
or  occupy  any  street  or  other  public  way,  space,  park  or  ground, 
or  any  part  thereof,  belonging  to  such  city,  or  to  cross  any 
stream  under  the  control  of  the  state,  said  commissioners  may 
take  and  use  or  occupy  the  same  on  behalf  of  the  city  for  such 
purposes;  and  whenever  it  shall  be  necessary,  in  the  opinion 
of  said  commissioners,  to  appropriate  any  land,  turnpike,  high- 
way or  franchise  of  any  description,  or  any  easement  or  interest 
in  any  of  the  same,  in  order  to  carry  out  the  purposes  set  forth 
in  this  act,  either  within  or  without  the  limits  of  such  city,  or, 
whenever,  for  like  reason,  it  shall  be  necessary,  in  the  opinion 
of  said  commissioners,  to  appropriate  land  for  the  foundations 
or  abutments  of  piers  across  any  stream  within  this  state,  said 
commissioners  are  authorized  to  commence  and  conduct,  in  the 
name  of  such  city,  proceedings  therefor,  under  and  according 
to  chapter  3,  division  7,  title  12,  of  the  Eevised  Statutes,1  and 
the  acts  amendatory  and  supplementary  thereto,  and  no  con- 
current action  of  any  board  or  officer  shall  be  necessary ;  and  all 
the  powers  with  respect  to  such  proceedings  that  are  now  vested 


WATER    WORKS.  649 

in  any  other  board  or  officer,  shall  be  vested  also  in  and  may 
be  exercised  by  said  commissioners.      [92  v.  606.] 

(1)   Appropriation  proceedings.       f erred  to  are  now  superseded  by  §§ 
—  The    chapter,    division    and    title       10  to  22  of  the  Code,  inclusive, 
of    the    Revised    Statutes    here    re- 


Sec.  2435 — 7  R.  S.  [As  to  making  of  contracts.]  Said  com- 
missioners, in  constructing  such  works,  or  such  enlargements, 
extensions,  improvements  or  additions,  shall  also  have  power 
and  authority  and  be  governed  in  respect  of  contracts  as  fol- 
lows : 

First  — To  make  contracts,  employ  such  superintendents,  en- 
gineers, clerks,  laborers  and  other  employes,  as  they  may  deem 
necessary,  and  to  fix  their  compensation ;  and  any  of  such  per- 
sons may  be  removed  by  a  majority  of  said  commissioners  at 
any  time.  No  contract  which  said  commissioners  shall  enter 
into,  or  modification  thereof,  shall  be  valid  until  assented  to  at 
a  regular  or  special  meeting  and  concurred  in  by  a  majority  of 
all  the  members,  and  such  assent  entered  on  the  minutes  of 
their  proceedings. 

Second  —  ~No  money  shall  be  expended  on  account  of  plans, 
specifications,  drawings,  construction  or  equipment  of  the  water 
works  herein  provided  for,  or  any  other  expense  connected 
therewith,  unless  first  authorized  by  said  commissioners,  and 
upon  vouchers,  signed  by  their  president  and  clerk,  upon  the 
auditor,  or  other  auditing  officer,  if  there  be  no  auditor  of 
such  city,  to  be  paid  by  the  treasurer  of  such  city,  upon  tkw 
warrant  of  the  auditor  or  other  auditing  officer,  if  there  be  no 
auditor,  out  of  the  funds  hereinafter  provided.  Said  commis- 
sioners shall,  before  entering  into  any  contract,  cause  plans  and 
specifications,  detailed  drawings  and  forms  of  bids  to  be  pre- 
pared, and  careful  estimate  of  cost  to  be  made;  and  when 
adopted  by  them,  they  may,  in  their  discretion,  cause  the  plans 
and  drawings  to  be  multiplied  and  printed,  by  photographing, 
lithographing  or  other  suitable  process,  and  the  specifications 
and  forms  of  bids,  contracts  and  bonds  to  be  prepared,  and 
have  the  same  printed  for  distribution  among  the  bidders. 

Third  — All  contracts  shall  be  made  in  writing,  in  the  name 
of  such  city  and  signed  by  the  president  and  clerk  of  said  com- 
missioners and  by  the  contractor.  Whenever  it  becomes  neces-< 
sary  in  the  opinion  of  said  commisioners,  in  the  prosecution  of 
said  work,  to  make  alterations  or  modifications  in  any  contract, 
such  alterations  and  modifications  shall  only  be  made  by  order 


650  THE    OHIO    MUNICIPAL    CODE. 

of  the  commissioners ;  and  such  order  shall  be  of  no  effect  until 
the  price  to  be  paid  for  the  work  or  materials,  under  such 
altered  or  modified  contract,  has  been  agreed  upon  in  writing, 
and  signed  by  the  contractor  and  a  majority  of  the  members  of 
said  commissioners;  and  no  contractor  shall  be  allowed  or  re- 
cover any  thing  for  work  or  materials,  caused  by  any  alteration 
or  modification,  unless  an  order  is  made  or  agreement  signed 
as  aforesaid ;  nor  shall  he  in  any  case  be  allowed  or  recover 
more  for  such  work  and  materials  than  said  agreed  price ;  and 
if,  when  the  commissioners  have  ordered  an  alteration  or  mod- 
ification of  contract,  the  contractor  and  the  commissioners  can 
not  agree  upon  the  price  to  be  paid  for  work  or  materials,  under 
such  altered  or  modified  contract,  they  shall  submit  the  matter 
to  arbitration,  the  commissioners  choosing  one  arbitrator  and 
the  contractor  one,  and  these  two  a  third;  and  the  award  of 
such  arbitrators,  or  a  majority  of  them,  as  to  the  price  to  be 
paid,  shall  be  made  in  writing  and  entered  on.  the  minutes  of 
said  commissioners,  and  when  so  entered  shall  be  binding  on 
both  parties. 

Fourth  —  If  a  contract,  agreement  or  order,  made  or  author- 
ized by  said  commissioners  be  found  to  violate  any  of  the  pro- 
visions of  this  act,  it  shall  at  once  become  void  and  of  no 
effect;  and  no  money  shall  be  paid  or  recovered  for  service 
rendered  or  materials  furnished  thereunder. 

Fifth  —  Said  commissioners  shall  not  enter  into  any  con- 
tract for  work  in  the  construction  and  completion  of  said  water 
works  system,  without  first  causing  thirty  days'  notice  to  be 
given  in  one  of  more  newspapers  of  general  circulation  in  such 
city,  that  sealed  proposals  will  be  received  for  doing  the  work 
or  furnishing  the  materials,  provided  that  said  commissioners 
may  procure  plans  therefor  in  the  manner  indicated  in  section 
5  [§(2435 — 5)]  of  this  act,  and  shall  not  be  required  to  ad- 
vertise for  bids  for  making  or  printing  the  drawings,  specifica- 
tions and  forms  of  bids,  contracts  and  bonds. 

Sixth  —  In  all  cases  of  competitive  bidding,  whether  in  the 
construction  or  completion  of,  or  furnishing  equipments  for 
such  water  works  system,  no  bid  shall  be  received  or  considered 
by  said  commissioners  which  covers  a  patented  material,  proc- 
ess or  device,  until  the  person  who  owns  or  controls  the  patent 
or  has  a  contract  for  the  exclusive  use  of  such  patented  material, 
process  or  device,  has  entered  into  a  written  agreement  with  the 
said  commissionrs  for  the  benefit  of  all  bidders,  whereby  the 
lowest  price  shall  be  fixed  at  which  the  owner  of  such  patent, 
or  patented  articles  will  furnish  to  said  commissioners,  or  which 


WATER    WORKS.  651 

he  will  furnish  to  all  bidders  such  patented  material,  process  or 
device. 

Seventh  — All  bids  shall  be  enclosed  in  a  sealed  envelope  and 
deposited  with  the  clerk  of  said  commissioners ;  and  such  sealed 
envelopes  shall  have  endorsed  thereon  the  nature  of  the  same 
and  the  name  of  the  bidder ;  and  all  bids  shall  be  opened  at  a 
regular  meeting  of  the  commissioners,  and  at  an  hour  to  be 
indicated  in  said  notice.  Each  bid  shall  be  accompanied  with 
a  bond  in  a  sum  to  be  fixed  by  said  commissioners,  signed  by 
sufficient  sureties,  for  the  acceptance  of  the  contract,  if  awarded 
by  the  commissioners ;  or  the  bidder  may  deposit  with  the  com- 
missioners, in  lieu  of  such  bond,  a  certified  check  or  bank 
certificate  of  deposit,  payable  to  the  order  of  said  commission- 
ers ;  or  cash  equal  in  amount  to  the  bond  as  above  required ;  and, 
iii  case  of  refusal  by  the  bidder  to  whom  the  award  is  made 
to  enter  into  contract  according  to  his  bid,  within  such  reason- 
able time,  as  the  commissioners  may  determine,  said  bond  shall 
be  put  in  suit,  and  the  amount  collected  paid  into  the  fund 
hereinafter  provided ;  or,  if  a  check,  or  certificate  of  deposit, 
or  cash  is  deposited,  the  amount  shall  be  immediately  paid  into 
such  fund. 

Eighth  —  Said  commissioners  shall  enter  into  contract  with 
the  lowest  and  best  bidder,1  upon  his  giving  bond  to  such  city, 
with  sureties  as  the  commissioners  shall  approve,  that  he  will 
perform  the  work  and  furnish  the  materials  in  accordance  with 
his  contract,  and  that  the  sureties  agree  in  advance  to  such 
modifications  and  alterations  as  may  be  made  by  said  com- 
missioners and  the  contractor,  within  the  limits  of  the  penal 
sum  mentioned  in  the  bond ;  and  on  the  failure  of  such  bidder, 
within  a  reasonable  time,  to  be  fixed  by  the  commissioners,  to 
enter  into  bond  with  the  sureties  before  provided,  a  contract 
may  be  made  with  the  next  lowest  and  best  bidder,  and  so  on, 
until  a  contract  is  effected  with  a  contractor  giving  bond  as 
aforesaid;  provided,  that  the  commissioners  may  let  the  work 
in  whole  or  in  parts,  and  may  receive  bids  for  labor  and  ma- 
terial separately,  as  it  may  deem  best,  and  may  reject  any  and 
all  bids.  Should  a  contractor  fail,  from  any  cause,  to  complete 
the  work  contracted  for  by  him,  said  commissioners  shall  relet 
the  unfinished  part  of  said  work  or  complete  the  same  by  days' 
work  or  otherwise,  as  may  be  for  the  best  interests  of  the  city 
in  the  judgment  of  said  commissioners,  and  shall  charge  the 
cost  of  completion  to  the  contractor.      [92  v.  606.] 

(1)  Discretion  of  board. —  This  authority  to  make  a  contract  "with 
section  which  confers  on  the  board       the  lowest  and  best  bidder/'  confers 


652  THE     OHIO     MUNICIPAL     CODE. 

upon    the    board    a    discretion    with       Uermann,  6  N.  P.,  452;  7  N.  P.  6; 
respect    to    awarding    the    contract       aff'd,  63  O.  S.  572. 
which  cannot  be  controlled  by  man-  Board  has  no  power  to  relinquish 

damus.      State    ex    rel.    Walton    v.       rights   secured   to  the  city  by  con- 
Hermann,  63  0.  8.  440;   Coppin  v.       tract.     New  York  &  B.  Co.  v.  Her- 
mann, 27  C.  C.  694. 

Sec.  2435 — 8  R.  S.  [If  inexpedient  to  proceed  nnder  section 
seven  then  board  may  contract  with  any  person,  etc.,  for  construc- 
tion, etc.,  of  works.]1    §  8.     [92  v.  606.] 

( 1 )    Held    unconstitutional,    be-  leased   to  the  city,  and   conveyance 

cause    it    empowered    union   of   city  by    the    city    of    property    to    such 

property    with    enlargements    to    be  others.     Alter  v.   Cincinnati,   56   0. 

built    and    owned    by    others    and  S.  47. 

Sec.  2435—9  It.  S.  [Expenses.]  §  9.  All  expenses  that  may 
be  incurred  by  said  commissioners  up  to  the  time  that  any  con- 
tract may  be  entered  into  as  provided  by  [in]  section  8 
[§(2435 — 8)]  of  this  act  or  until  the  issue  and  sale  of  any 
bonds  hereinafter  provided  for  may  have  been  consummated, 
shall  be  paid  out  of  the  water  works  fund  of  such  city,  by  the 
board  having  charge  of  the  water  supply  of  such  city,  upon 
vouchers  drawn  and  approved  by  said  board,  but  all  such  sums 
so  paid  shall  be  reimbursed  to  the  said  water  works  fund,  either 
by  the  contracting  parties  hereinbefore  mentioned,  or  out  of 
the  proceeds  of  the  sale  of  bonds  hereinafter  provided  for.  [92 
v.    606.] 

Sec.  2435— 10 U.S.  [Fund  for  payment.]  §  10.  To  pro 
vide  a  fund  to  pay  the  cost  and  expenses  contemplated  by  this 
act,  the  said  commissioners  are  hereby  authorized  to  borrow, 
from  time  to  time,  as  money  may  be  needed,  in  behalf  of  such 
city,  an  amount  not  to  exceed  six  million  five  hundred  thousand 
($6,500,000)  dollars,  and  to  issue  bonds  therefor  in  the  name 
of  such  city,  under  the  corporate  seal  thereof.  Such  bonds 
shall  be  designated  "  water  works  bonds  "  of  such  city,  shall  be 
signed  by  the  president  of  said  commissioners  of  water  works, 
and  attested  by  the  auditor  of  the  city,  or  other  auditing  officer, 
if  there  be  no  auditor,  and  shall  bear  such  interest,  not  exceed- 
ing four  per  centum  per  annum,  and  be  payable  at  such  times 
and  places,  and  in  such  amounts  as  said  commissioners  may 
determine.  Said  bonds  shall  be  sold,  as  provided  by  law.  and 
as  a  security  therefor,  upon  the  sale  thereof,  a  lien  shall  arise 
in  favor  of  the  bond-holders  upon  the  water  works  property 
then  owned  and  thereafter  acquired  by  such  city,  except  as 
hereinafter  provided  for,  and  upon  the  net  income  of  the  water 
works,  and  said  bonds  shall  be  further  secured  by  a  pledge  of 
the  faith  and  credit  of  such  city.      [92  v.  606.] 


WATER    WORKS.  G53 

Sec.  2435 — 11  R.  S.  ["  Water  works  improvement  fund."]  §  11. 
Ihe  moneys  arising  from  the  sale  of  said  bonds  shall  be  de- 
posited with  the  city  treasurer  as  a  fund  to  the  credit  of  said 
commissioners  of  the  water  works,  and  shall  be  called  the 
"  water  works  improvement  fund " ;  and  of  this  fund  said 
commissioners  shall  be  the  sole  trustees  and  shall  have  full 
control  and  disbursement  of  the  same.  No  part  of  said  fund 
shall  be  diverted  to  any  other  use  or  purpose  than  that  specified 
in  this  act.  All  warrants  drawn  upon  the  auditor  or  other 
auditing  officer,  if  there  be  no  auditor,  for  payment  out  of 
said  fund,  shall  designate  on  their  face,  "  for  reimbursement  " 
(as  provided  for  in  section  9),  [§(2435 — 9)]  "  for  plans," 
"  for  specifications,"  "  for  construction,"  "  for  equipment,"  ac- 
cording as  they  are  drawn  for  the  one  purpose  or  the  other, 
and  a  careful  account  of  the  condition  of  said  fund  shall  be 
separately  kept  by  the  auditor  of  said  city,  or  other  auditing 
officer,  if  there  be  no  auditor.      [92  v.  606.] 

Sec.  2435 — 12  E.  S.  [When  works  completed  management  sur- 
rendered by  commissioners.]  §  12.  Whenever  the  water  works 
or  the  enlargement,  extension,  improvement  or  addition  to 
existing  water  works  are  completed  as  contemplated  under 
section  7  [§(2435 — 7)]  of  this  act,  control  of  the  same  shall 
be  surrendered  by  said  commissioners  to  the  board  having 
charge  of  the  water  supply  of  such  city ;  provided,  that  when- 
ever in  the  judgment  of  said  commissioners  any  portion  of 
such  improvement  is  completed  so  that  the  same  can  be  sur- 
rendered without  impeding  or  embarrassing  other  portions  of 
said  improvements,  the  same  may  be  surrendered  to  the  board 
having  charge  of  the  water  supply  of  such  city.      [92  v.  606.] 

Sec.  2435 — 13  R.  S.  [Property  not  needed  may  be  sold.]  §  13. 
Whenever  any  property,  both  real  and  personal,  occupied  and 
used  for  water  works  purposes  in  such  city,  shall  not  be  re- 
quired for  such  purposes,  by  reason  of  the  enlargement,  exten- 
sion, improvement  or  addition  as  herein  provided  for,  the 
board  having  charge  of  the  water  supply  of  such  city  shall  have 
power,  after  giving  thirty  days'  notice  by  advertisement  in 
one  or  more  newspapers  of  general  circulation  in  such  city,  to 
sell  the  same  on  sealed  proposals,  to  the  highest  and  best  bidder 
therefor.  And  the  lien  hereinbefore  created  for  the  security 
of  the  bonds  hereinbefore  authorized  shall  be  transferred  to 
the  proceeds  arising  from  the  sale  of  such  property ;  and  such 
proceeds  shall  be  placed  to  the  credit  of  the  sinking  fund  here- 
inafter provided,  for  the  final  redemption  of  the  bonds  issued 
under  the  provisions  of  this  act.      [92  v.   606.] 


654  THE    OHIO    MUNICIPAL    CODE. 

Sec.  2435— 14  R.  S.  [Unexpended  funds  shall  be  placed  to 
credit  of  sinking  fund.]  §  14.  Upon  the  completion  of  any 
water  works,  or  the  enlargement,  extension,  improvement  or 
addition  provided  for  in  this  act,  whether  the  same  be  under 
section  7  [§(2435—7)]  or  section  8  [§(2435—8)]  thereof, 
the  term  of  office  of  the  commissioners  and  the  employment  of 
their  several  employes  shall  cease,  and  any  unexpended  funds 
shall  be  placed  and  kept  to  the  credit  of  the  sinking  fund  pro- 
vided for  by  this  act;  and  thereupon,  the  control  and  manage- 
ment of  said  water  works,  if  constructed  under  section  7, 
[§(2435 — 7)]  shall  pass  to  and  vest  in  the  board  having  charge 
of  the  water  supply  in  such  city,  and  the  obligations  entered 
into  by  said  commissioners  under  section  8,  [§(2435 — 8)]  if 
any,  shall  be  assumed  and  performed  by  the  said  board  having 
charge  of  the  water  supply,  the  expense  thereof  to  be  paid  out  of 
the  revenues  of  the  water  department  after  assuming  control 
of  the  works  herein  provided  for.  The  board  having  charge  of 
such  water  works  shall  not  thereafter  be  permitted  to  create 
any  debt  or  liability  for  any  of  the  purposes  for  which  they 
are  authorized  to  assess  water  rents,  including  all  obligations 
incurred  under  the  provisions  of  this  act,  that  cannot  be  met 
and  paid  from  the  income  of  the  water  works  department  for 
that  year;  and  all  debts  created  in  violation  of  this  provision 
shall  be  absolutely  void;  nor  shall  the  board  of  legislation 
create  any  debt  or  borrow  any  money  for  the  use  of  the  water 
works  of  such  cities.      [92  v.  606.] 

Sec.  2435—15  R.  S.  [Interest  on  bonds.]  §  15.  The  interest 
becoming  due  on  the  bonds  which  may  be  issued  under  the 
provisions  of  section  10  [§(2435—10)]  of  this  act,  shall 
be  paid  pending  the  construction  t>i  said  works  out  of  the 
proceeds  of  the  sale  of  such  bonds,  unless  the  board  having 
charge  of  the  water  supply, of  such  city,  agrees  to  assume  the 
same  or  any  portion  thereof,  during  the  construction  of  such 
works,  out  of  the  proceeds  of  the  revenues  of  the  water  de- 
partment, and  in  that  case  such  board  shall  be  permitted  to  do 
so.  The  interest  becoming  due  on  the  bonds  which  may  be 
issued  under  the  provisions  of  section  10  [§(2435 — 10)]  of 
this  act,  after  the  completion  of  the  work  herein  authorized,  and 
after  the  control  of  the  same  has  been  surrendered  to  the  board 
having  charge  of  the  water  supply  of  such  city,  shall  be  paid 
by  such  board  each  year  out  of  the  revenues  of  the  water  de- 
partment.     [92  v.  606.] 

Sec.  2435—16  R.  S.  [Bonds.]  §  16.  For  the  purpose  of  pro- 
viding a  sinking  fund  for  the  final  redemption  of  any  bonds 


WATER    WORKS.  655 

whicii  may  be  issued  under  section  10  [§(2435 — 10)]  of  this 
act,  the  board  having  charge  and  control  of  the  operations  of  the 
water  works  of  such  city,  and  the  collection  of  the  revenue 
therefrom,  shall  make  semi-annual  payments  from  the  net  rev- 
enues of  such  water  works  to  the  sinking  fund,  commencing 
the  sixth  year  after  the  appointment  of  the  commissioners  pro- 
vided for  in  section  one  [§(2435 — 1)]  of  this  act,  of  not  less 
than  seventy-five  thousand  ($75,000)  dollars  per  annum,  until 
said  bonds  are  paid,  or  an  adequate  fund  provided  for  the 
final  redemption  of  the  same;  and  said  yearly  sums,  together 
with  their  earnings  and  other  payments  hereinafter  provided 
for,  shall  be  invested  in  accordance  with  law  by  the  sinking 
fund  trustees  of  such  city;  or  if  there  be  no  trustees  of  the 
sinking  fund,  then  by  the  board  or  officer  or  officers  having 
charge  of  the  sinking  fund  of  such  city,  solely  for  the  benefit  of 
the  sinking  fund  for  the  final  redemption  of  said  bonds.  [92 
v.  606.] 

Sec.  2435—17  It.  S.  [No  member  individually  liable.]  §  17.  .No 
member  of  said  commissioners  shall  be  individually  responsible 
to  any  contractor  or  employe  upon  any  contract  or  employment 
made  in  pursuance  of  this  act,  nor  to  any  person  upon  any 
claim  occasioned  by  any  act  or  default  of  any  person  contracted 
with  or  employed  in  pursuance  of  this  act.      [92  v.  606.] 

Sec.  2435 — 18  R.  S.  [Non-applicability  of  certain  sections.] 
§  18.  The  provisions,  restrictions  and  limitations  of  sections 
2690/*,  2690i,  2690;,  2699  and  2702  of  the  Eevised  Statutes  1 
shall  not  apply  to  the  commissioners  appointed  under  this  act, 
in  the  prosecution  of  the  work,  or  the  contracts  herein  provided 
for.     [92  v.  606.] 

(1)   New  code  provisions. —  The      provisions  see  §§  35,  38.  43  and  45 
sections    here    referred    to    are    re-      of  the  Cod«. 
pealed    by    the    Code.     For    similar 


656 


THE    OHIO    MUNICIPAL    CODE. 


VI 


LIGHTING  AND  WATER  COMPANIES; 
MUNICIPAL  LIGHTING  PLANTS.1 

Sec.  2478.  [Council  may  regulate  price  of  electric  light,  gas  or 
water.]  The  council  of  any  city  or  village  in  which  electric 
lighting  companies,  natural  or  artificial  gas  companies,  or  gas 
light  or  coke  companies,  or  companies  for  supplying  water  fur 
public  or  private  consumption,  may  be  established,  or  into  which 
their  wires,  mains  or  pipes  may  be  conducted,  are  hereby  em- 
powered to  regulate  from  time  to  time,  the  price  which  said 
electric  lighting,2  natural  or  artificial  gas,  gas  and  coke  com- 
panies, or  companies  for  furnishing  water  for  public  or  private 
consumption,  may  charge  for  electric  light,  or  for  gas  for  light- 
ing  or  fuel  purposes,  or  for  water  for  public  or  private  consump- 
tion, furnished  by  such  companies  to  the  citizens,  public 
grounds,  and  buildings,  streets,  lanes,  alleys,  avenues,  wharves, 
and  landing  places,  or  for  fire  protection;  and  such  electric 
lighting,  natural  or  artificial  gas,  gas  light  or  coke  companies 
or  companies  for  furnishing  water  for  public  or  private  con- 
sumption, shall  in  no  event,  charge  more  for  any  electric  light, 
or  natural  or  artificial  gas,  or  water,  furnished  to  such  corpo- 
ration or  individuals,  than  the  price  specified  by  ordinance  of 
such  council ;  and  such  council  shall  also  have  power  to  regu- 
late and  fix  the  price  which  such  companies  shall  charge  for 
the  rent  of  their  meters, 

[May  require  meters  to  be  furnished  without  extra  charge.] 
and  may,  in  the  ordinance  regulating  the  price  which  such 
companies  may  charge  for  electric  light,  gas  or  water,  provide 
that  such  price  shall  include  the  use  of  meters  to  be  fur- 
nished by  such  companies,  and  in  such  case  meters  shall  be 
furnished  and  kept  in  repair  by  such  companies  and  no  sepa- 
rate charge  shall  be  made,  either  directly  or  indirectly,  for 
the  use  or  repair  of  the  same.  [1906,  April  14,  98  v.  170;  97 
v.  114;  86  v.  62;  84  v.  39;  66  v.  218.] 

(1)    Sections    on    gas    compa=  power  and  heating  and  natural  gas 

nies  and  municipal  gas  works.—  plants,  see  paragraph  15,  §  7  of  the 

Sections  of  the  Revised  Statutes  car-  Code,  page  54. 

ried  here  formed  part  of   Chap.   3,  Power  of  municipality  to  appro- 
Div.   8,  Title  XII.,  R.   S.     All  sec-  priate    property    for    such    purpose, 
tions  of  the  chapter  not  carried  here  see  §  10  of  the  Code,  page  81. 
are  repealed  by  the  Code.     §  2491  is  Power    of    municipality    to    con- 
referred  to  in  §  45  of  the  Code.  tract  for  lighting  the  streets,  etc., 

Power  of  municipality  to  es-  see  §  45  of  the  Code  at  page  172. 
tablish     and     maintain     lighting, 


LIGHTING    COMPANIES. 


657 


(2)  Power  to  regulate. — Where 
the  right  has  been  reserved  to  al- 
ter or  amend  charter,  a  general  law 
may  be  passed  authorizing  cities  to 
regulate  the,  price  of  gas.  State 
ex  rel.  v.  Cincinnati  G.  L.  &  C.  Co., 
18  0.  S.  262. 

A  company  chartered  under  the 
old  constitution,  unless  empowered 
by  charter  to  fix  prices,  comes 
within  the  provisions  of  this  sec- 
tion. Zanesville  v.  Gas  Light  Co., 
47  0.  S.  1. 

A  company  whose  pipes  extend 
into  another  city  or  village,  is  sub- 
ject to  the  regulations  of  such  city 
or  village  under  the  authority  of 
this  section.  Cincinnati  G.  L.  &  C. 
Co.  v.  Avondale,  43  O.  S.  257. 

Municipality  is  not  deprived  of 
its  power  to  regulate,  because  it 
has  passed  an  ordinance  allowing 
a  gas  company  to  lay  pipes  in  the 
street,  the  company  agreeing  not 
to  charge  more  than  a  certain  price 
for  gas.  State  ex  rel.  v.  Cleveland, 
etc.,  Co.,   3   C.   C.  251. 

The  ordinance  allowing  pipes  to 
be  laid  is  not  a  contract.  lb. 
Where  no  contract  has  been  made 
with  a  company,  fixing  the  price  of 
gas,  the  municipality  may  regu- 
late the  price  of  gas,  and  make 
changes  at  any  time.  State  ex  rel. 
v.  Gas  Co.,  37  O.  S.  45. 

But  if  a  contract  has  already 
been  made  and  the  company  has 
accepted  the  terms  of  an  ordinance? 
fixing  the  price  of  gas,  the  contract 
cannot  be  changed.  Toledo  v.  N. 
W.  Ohio  Nat.  Gas  Co.,  5  C.  C.  557. 
Where  municipality  has  fixed  the 
price  for  lighting  for  ten  years, 
under  §  2479  R.  S.,  infra,  its  power 
to  regulate  after  such  period  is  not 
affected.  State  ex  rel.  v.  Gas  Co., 
37  O.  S.  45.  See  further,  note  (1) 
under  §  2479  R.  S.,  infra. 

An  ordinance  regulating  gas  com- 
panies,  and   referring  to   "  any  gas 


companies "  is  broad  enough  to 
cover  companies  organized  for  fur- 
nishing natural  gas.  Cline  .  v. 
Springfield,   7  N.   P.   626. 

As  to  effect  of  company  chartered 
to  furnish  artificial  gas,  substitut- 
ing natural  gas  therefor,  see  Find- 
lay  Gas  Light  Co.  v.  Findlay,  2  C. 
C.  237. 

Scope  of  regulation. —  Council 
has  no  power  to  compel  a  gas  com- 
pany, without  its  assent  to  the  or- 
dinance, to  furnish  gas  in  a  man- 
ner and  at  a  rate  at  the  option  of 
the  consumer.  Gas  &  Fuel  Co.  v. 
Chillicothe,  65  O.  S.  186;  Newark 
v  Gas  &  Fuel  Co.,  65   O.  S.  210. 

Having  fixed  one  standard  for 
prices  for  ten  years,  which  has 
been  duly  accepted  by  the  com- 
pany, council  cannot  within  that 
period,    fix    another    standard.      76. 

The    power    to    regulate    includes 

the  power  to  demand  reports,  data, 

etc.     Cline     v.     Springfield,     7     N. 

«P.  626. 
I 

The  fact  that  price  fixed  has  after- 
wards become  inadequate  is  not 
ground  for  relief.  Manhattan 
Trust  Co.  v.  Gas  Co.,  7  O.  F.  D.  578. 

Reasonableness    of    relation. 

—  A  regulation  without  taking  into 
consideration  the  amount  of  gas 
consumed  is  void.  Toledo  v.  N.  W. 
Ohio  Nat.  Gas.  Co.,  5  C.  C.  557. 

Reasonableness  presumed.  — 
Price  fixed  is  presumed  reasonable 
until  the  contrary  is  proved.  Bel- 
laire  Goblet  Co.  v.  Findlay,  5  C. 
C.  418.  Sec  also  State  ex  rel.  v. 
Gas  Co.,  37  O.  S.  45 ;  Central  O.  Gas 
&  Fuel  Co.  v.  Columbus,  16  Dec.  359. 

But  no  presumption  arises  when 
answer  denies  reasonableness  of 
price  fixed  by  ordinance  and  when 
a  contract  exists  in  which  a'  rea- 
sonable price  is  to  be  fixed  by 
agreement.  Toledo  v.  N.  W.  Ohio 
Nat.  Gas  Co.,  5  C.  C.  557. 

Presumption  of  validity  of  or- 
dinance. —  Ordinance  regulating 
price  is  presumed  valid  until  con- 
trary is  proved.  State  ex  rel.  v. 
Ironton  Gas  Co.,  37  O.  S.  45,  49. 


658  THE    OHIO    MUNICIPAL    CODE. 

And   inadequacy  of   price  in  ab-  How    regulation    may   be   en- 

sence  of  fraud  or  bad  faith  will  not  forced. — Gas  company  must  furnish 

be  inquired  into.     lb.  gas   at  the   rates   fixed;    failing   to 

When  council  does  not  regu-  do    so,    mandatory    injunction    will 

late. — Llectric  light  company  must  lie.      Gas   Light    Co.    v.    Zanesville, 

furnish     light     to     all     inhabitants  47    O.    B.    35.      See   ajso   Toledo   v. 

alike     at     reasonable     price     when  N.  W.  Ohio  Nat.  Gas  Co.,  5  C.  C. 

council  has  not  regulated  the  price.  557. 
Railway   v.    Bowling   Green,    57    0. 
b.  33G. 

FORM  OF  ORDINANCE   REGULATING  PRICE  OF  GAS. 

Ordinance  No 

To  regulate  the  price  which  the Company  may  charge 

for  gas  for  and  during  the  ensuing years. 

Be  it  ordained  by  the  council  of  the  city  [or  village]  of , 

State  of  Ohio: 

Sec.  1.     That  during  the  period  of years  from  and  after 

the  passage  of  this  ordinance  and  its  acceptance  by  the 

Company,  said  company  may  charge  for  gas  of  not  less  than 

candle  power  furnished  to  the  citizens  or  private  consumers  and  to  the 
public   buildings,    grounds,    streets,   lanes,    alleys,    avenues,   market   places 

[etc.]    of  the  city   [or  village]    of ,  for  illuminating 

purposes,   per  thousand  cubic  feet.     If  paid  within 

days  after  the  dates  of  monthly  settlements,  then  a  discount  of 

per  thousand  cubic  feet  shall  be  allowed.  For  all  gas  supplied  and  used 
exclusively  for  heating  and  fuel  purposes,  through  a  separate  service  and 

meter,  said  company  may  charge  during  said  period per  thousand 

cubic    feet.  .  If    paid    within days    after    the    dates    of    monthly 

settlements,  then  a  discount  of per  thousand  cubic  feet  shall  be 

allowed. 

The  said  The Company    shall   in  no  event,   during 

said  term  of .....years,  charge  for  gas  furnished  as  above  men- 
tioned, more  than  the  prices  herein  specified. 

Sec.  2.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
its  acceptance  by  said  The Company,  and  its  publica- 
tion as  required  by  law. 

Passed 19 


president  of  Council. 

Attest :    

Clerk. 

[Accepted 19 J 

Note. —  The  charge  for  lighting  streets,  etc..  and  the  method  of  com- 
puting bills  therefor,  as  per  lamp  or  otherwise,  will  be  governed  by  any 
contract  made  between  company  and  municipality. 

Sec.  2479.  [Price  at  which  company  shall  furnish  elec- 
tricity or  gas  not  to  be  reduced  during  term  agreed  upon.]    In 

case  the  council  fixes  the  price  at  which  it  shall  require  any 
company  to  furnish  electricity  or  either  natural  or  artificial 
gas  to  the  citizens,  or  public  buildings,  or  for  the  purpose  of 


LIGHTING   COMPANIES. 


659 


lighting  the  streets,  alleys,  avenues,  wharves,  landing  places, 
public  grounds  or  other  places  or  for  other  purposes,  for  a 
period  not  exceeding  ten  years,  and  the  company  or  person 
so  to  furnish  such  electricity  or  gas  shall  assent  thereto,  by 
written  acceptance,  filed  in  the  office  of  the  clerk  of  the  cor- 
poration, it  shall  not  be  lawful  for  the  council  to  require  such 
company  to  furnish  electricity  or  either  natural  or  artificial 
gas,  as  the  case  may  be,  at  a  less  price  during  the  period  of 
time  agreed  on,  not  exceeding  ten  years,1  as  aforesaid;  and 
every  ordinance  or  resolution  heretofore  passed  by  any  mu- 
nicipal corporation  fixing  a  minimum  price  for  furnishing 
electricity  or  either  natural  or  artificial  gas  as  aforesaid, 
which  has  been  assented  to  by  any  company  or  person  by 
written  acceptance  filed  in  the  office  of  the  clerk  of  the  corpo- 
ration, shall  be  as  valid  and  said  price  shall  be  as  binding  as  if 
this  act  had  been  in  force  when  any  such  price  was  in  terms  so 
fixed  and  accepted.2     [1904,  April  23,  97  v.  263;  66  v.  218.] 


(1)  Contract  beyond  legal 
period. — Where  the  power  is  given 
to  the  municipality  to  contract  for 
a  period  "not  exceeding  ten  years," 
the  conclusive  implication  is  that 
the  municipality  is  forbidden  to 
contract  for  a  longer  period,  and 
contract  exceeding  such  legal  period 
is  ultra  vires  and  void,  and  the 
contractual  stipulations  contained 
therein  are  equally  void  and  neither 
party  can  enforce  them.  Wellston 
v.  Morgan,  59  O.  S.  147.  See  also 
Gas  &  Fuel  Co.  v.  Chillicothe,  65 
O.  S.  186,  207 ;  Davy  v.  Hyde  Park, 
16  C.  C.  507  (aff'd  61  O.  S.  638)  ; 
Cincinnati  Gas  Light  &  Coke  Co. 
v.  Avondale,  43  O.  «S.  257,  267; 
Lima  Gas  Co.  v.  Lima,  4  C.  C.  22. 
But  see  contra,  Toledo  v.  N.  W. 
Ohio  Natural  Gas  Co.,  5  C.  C.  557. 

Such  a  contract  beyond  the  legal 
period  will  in  no  way  affect  the 
authority  of  the  municipality  to 
regulate  the  price  of  gas,  even 
though  the  contract  has  been  per- 
formed by  both  parties  for  the  legal 
period.  State  ex  rel,  v.  lronton  Gas 
Co.,  37  O.  S.  45. 

But  an  ordinance  fixing  the  price 
of  gas  to  be  charged  for  a  period 
of  ten  years,  the  price  fixed  not  to 
go  into  effect  until  six  months  after 
the  passage  and  taking  effect  of  the 
ordinance  and  continue  ten  years 
from  and  after  such  six  months,  is 
not  a   contract  exceeding  the   legal 


period,  but  is  valid  and  binding  for 
ten  years  from  the  date  when  the 
price  fixed  goes  into  effect.  Logan 
Natural  Gas  Co.  v.  Chillicothe,  65 
O.  S.  186. 

An  ordinance  regulating  the 
price  of  gas,  is  not  within  the  re- 
strictions of  §  1691  K.  S.  (under 
Officers,  subdivision  Council,  page 
539)  providing  that  council  shall 
not  enter  into  any  contract  which 
is  not  to  go  into  full  operation  dur- 
ing the  term  for  which  all  the  mem- 
bers of  such  council  are  elected.    lb. 

(2)  Change  in  price. — When 
the  council  has  fixed  the  price  of 
gas  according  to  one  standard  and 
the  price  has  been  duly  accepted  by 
the  company,  it  cannot  be  altered 
without  the  consent  of  the  com- 
pany, by  fixing  another  standard, 
which  may  affect  the  price  pre- 
viously fixed.  Logan  Natural  Gas 
Co.  v.  Chillicothe,  65  O.  S.  186; 
State  ex  rel.  v.  Gas  Co.,  37  O.  S.  45. 

But  if  no  contract  has  been  made 
with  a  company,  council  has  power 
to  regulate  the  price  from  time  to 
time.  State  ex  rel.  v.  Gas  Co.,  37 
O.  S.  45. 

The  fact  that  council  has  fixed  the 
maximum  price  for  one  company, 
does  not  prevent  council,  within  the 
ten  years,  from  fixing  a  lower  maxi- 
mum price  for  another  company. 
Central  Ohio  Gas  &  Fuel  Co.  v.  Co- 
lumbus, 16  Dec.  359. 


660  THE    OHIO     MUNICIPAL    CODE. 

Such  an  ordinance,  fixing  a  lower  Natural   gas   companies. — This 

price  for  another  company,  does  not  section  was  held  to  apply  to  natural 
affect  the  price  fixed  for  the  first  gas  companies,  even  before  the 
company.     lb.  amendment  of   1904.     Toledo  v.  N. 

W.  Ohio  Nat.  Gas  Co.,  5  C.  C.  557. 

Sec.  2480  R.  S.  [When  council  may  occupy  streets  for  gas 
purposes,  etc.]  If  such  companies  are,  at  any  time,  required  by 
the  council  to  lay  pipes,  and  light  any  street,  alley,  avenue, 
wharf,  landing  place,  public  ground  or  building,  and  refuse  or 
neglect  for  six  months  after  being  notified,  by  authority  of  the 
council,  to  comply  with  such  requirement,  the  council  may 
lay  pipes  and  erect  gas  works,  for  lighting  such  streets,  alleys, 
or  public  grounds,  and  all  other  streets,  alleys,  and  public 
grounds,  not  already  lighted;  and  such  gas  companies  or  gas- 
light and  coke  companies,  shall  thereafter  be  precluded  from 
using  or  occupying  any  of  the  streets,  alleys,  public  grounds  or 
buildings,  not  already  furnished  with  gas  pipes  of  such  com- 
panies ;  and  the  council  may  open  any  street  for  the  purpose 
of  conveying  gas  as  aforesaid.1  [66  v.  218,  §  417;  (S.  &  C. 
1534).] 

(1)    Erection   of  plant  by   mu=       in  §  2480  R.  S.  arise.     State  ex  rel. 
nicipality,    when. —  It   is   not   nee-      v.  Hamilton,  47  O.  S.  52. 
essary   in  order  that  municipalities  Vested  rights. —  No  vested 

may  erect  and  operate  gas  works  rights  of  a  gas  company  are  taken 
that    the    contingency    provided    for       away  by  a  municipality  erecting  its 

own   plant.      lb. 

Sec.  2481  R.  S.  [Gas  companies  may  be  permitted  to  occupy 
streets.]  The  council  may,  at  any  time  after  the  default  men- 
tioned in  the  preceding  section,  permit  such  gas  companies  to 
use  and  occupy  the  streets,  alleys,  and  public  grounds  of  such 
corporation,  for  the  purpose  of  lighting  the  same,  and  furnish- 
ing gas  to  the  citizens  and  public  buildings.  [6Q  v.  218,  §  418  ; 
(S.  &  C.  1538).] 

Sec.  2482  R.  S.  [Forfeiture  of  charter  for  neglect  to  furnish 
gas,  etc.]  A  neglect  to  furnish  gas  to  the  citizens,  and  other 
consumers  1  of  gas,  or  to  the  corporation,  by  any  company,  in 
accordance  with  the  prices  fixed  and  established  by  the  council', 
from  time  to  time,  shall  forfeit  all  rights  of  such  company 
under  the  charter  by  which  it  has  been  established;  and  the 
council  may  proceed  to  erect,  or,  by  ordinance,  empower  any 
person  to  erect  gas  works,  for  the  supply  of  gas  to  such  corpora- 
tion and  its  citizens ;  provided  that  nothing  in  this  section  or  in 
sections  twenty-four  hundred  and  seventy-nine  and  twenty-four 
hundred  and  eighty,  shall  operate  to  impair  or  affect  any  con- 
tract heretofore  made  between  any  municipal  corporation  and 
any  gas-light  and  coke  company.2  [66  v.  219,  §  419;  (S.  & 
C.'  1535).] 


LIGHTING  COMPANIES.  661 

( 1 )  Consumer,  who  is. — As  to  natural  for  artificial  gas,  and  under 
person  using  gas  only  occasionally,  this  section  the  municipality  could, 
see  Adams  Exp.  Co.  v.  Gas  Co.,  21  after  abandonment  by  company  of 
B.   18.  its  artificial  plant,  provide  for  light 

(2)  Power  of  municipality  on  and  heat  for  its  inhabitants  by  sup- 
default  of  company. — Gas  compa-  plying   natural    gas.      Findlay    Gas 
nies  organized  and  operating  under  Light  Co.  v.  Findlay,  2  C.  C.  237. 
laws   of    1874   could  not   substitute 

Sec.  2483  R.  S.     [A  temporary  failure  shall  work  no  forfeiture.] 

A  temporary  failure  to  furnish  gas  shall  not  operate  as  a  for- 
feiture, unless  such  failure  is  through  the  neglect  or  miscon- 
duct of  such  gas-light,  or  gas-light  and  coke  company.  [66  v. 
219,  §  420;   (S.  &  C.  1538).] 

Sec.  2484  R.  S.  [Council  may  appoint  gas  inspector;  his  duties 
and  compensation.]  The  council  of  any  corporation  in  which 
gas  works  may  he  constructed  may  provide,  by  ordinance,  for 
the  appointment  of  an  officer,  to  he  known  as  inspector  of  gas, 
whose  duty  it  shall  be  to  inspect  all  gas  and  gas  meters,  and 
certify  the  correctness  of  all  bills  against  consumers  of  gas, 
make  photometric  tests,  and  perform  such  other  duties  as  may 
be  prescribed  by  ordinance;  and  the  council  shall  fix  his  com- 
pensation. The  council  may  also  provide  for  the  inspection 
and  testing  of  meters  used  for  measuring  electric  current  for 
electric  light,  power  or  other  purposes,  furnished  by  any  indi- 
vidual or  company  within  the  corporation,  and  may  prescribe 
a  suitable  charge  for  such  inspection  and  testing,  and  the  man- 
ner of  collecting  the  same.1  [91  v.  299 ;  66  v.  219,  §  421 ;  73 
v.  227,  §  4.] 

( 1 )  Validity. —  Legislature  may  the  companies  in  proportion  to  their 
provide  for  inspection  of  meters  and  valuation.  Cin.  Gas  L.  and  C.  Co., 
assess   the   cost   of   inspection    upon       v.  State,  18  O.  S.  237. 

Sec.  2485  R.  S.  [Exclusive  monopoly  shall  not  be  allowed  to 
gas  companies.]  It  shall  not  be  lawful  for  any  council  to  agree 
by  ordinance,  contract,  or  otherwise,  with  any  person  or  per- 
sons,1 for  the  construction  or  extension  of  gas  works  for  manu- 
facturing or  supplying  the  corporation  or  its  inhabitants  with 
gas,  which  shall  give  or  continue  to  any  person  or  persons 
making  such  agreements  with  the  council  the  exclusive  priv- 
ilege 2  of  using  the  streets,  lanes,  commons,  or  alleys,  for  the 
purpose  of  conveying  gas  to  the  corporation,  or  the  citizens 
thereof,  or  which  shall  deprive  the  council  of  the  right  to  des- 
ignate the  kind  of  meter  to  be  used  for  the  correct  measurement 
of  the  gas  furnished  under  such  agreement,  and  to  provide  for 
inspecting  or  regulating  the  same,  or  which  shall  not  specify 


662  THE    OHIO    MUNICIPAL    CODE. 

the  exact  quality  of  the  gas  3  to  be  furnished,  and  reserve  to 
the  council  the  right  to  enforce  an  exact  compliance  with  such 
specification,  under  such  rules  as  the  council  may  prescribe; 
nor  shall  the  council  make  any  such  agreement  which  shall  not. 
secure  to  the  council  the  right  to  purchase  such  works,  and  all 
the  appurtenances  belonging  thereto,  at  any  time  within  the  exis- 
tence of  such  contract  or  agreement.  [66  v.  219,  §  422;  (S. 
&  S.  902).] 

( 1 )  Meaning  of  "  person  or  gas,  is  void.  Hamilton  v.  Gas  Co.,. 
persons." — The  words  "person  or  8  N.  P.  319;  Morrow,  etc.,  Co.  v. 
persons,"  as  used  in  R.  S.,    §  2485,       Mt.  Gilead,  8  N.   P.  669. 

include  a  gas  company  or  other  pri-  Council   cannot   agree  to   put   be- 

vate  corporation.     Cin.  Gas  L.  and  yond    the   control    of    a  village  the 

C.  Co.  v.  Avondale,  43  O.  S.  257.  price   and    quality   of    gas,    as   well 

But  this    section   does   not   apply  as  the    quantity   the   village   would 

to  natural  gas  companies.     Gas  and  require  in  the  future.     Cin.  Gas  L. 

Fuel    Co.    v.    Chillicothe,    65    O.    S.  and   C.   Co.   v.   Avondale,   43   O.    S. 

186;   Newark  v.  Gas   and  Fuel  Co.,  257,   269. 
65  O.  S.  210.  (3)   Certain  rights.— A  contract 

(2)  Certain  contracts  prohib=  with  a  city  is  not  void  for  the 
ited. —  Council  could  not,  without  reason  it  does  not  reserve  the  right 
clear  legislative  authority,  grant  to  to  purchase  the  works.  Lima  Gas 
any   person   or   corporation   the  ex-  Co.  v.  Lima,  4.  C.  C.  22. 

elusive  use  of  the  streets  for  cer-  The  city  cannot  barter  away  its 
tain  purposes.  State  ex  rel.  v.  Cin.  power  to  contract  for  the  purchase 
Gas  L.  and  C.  Co.,  18  O.  S.  262.  of  gas  works.  lb. 
see  also  Cin.  Gas  L.  and  C.  Co.  v.  Company  subject  to  change  of 
Avondale,  43  O.  S.  257,  267.  grade. —  Pipes  laid  by  a  company 
An  ordinance  granting  to  a  gas  in  a  street  must  be  changed  to  con- 
company  the  exclusive  right  to  lay  form  to  a  new  grade.  Gas  L.  &  C. 
pipes    in  the   street   for   furnishing  Co.  v.  Columbus,  50  O.  S.  65. 

Sec.  2485a  R.  S.  [Consolidation  of  companies  doing  bnsiness  in 
same  muncipality.]  Any  two  or  more  of  the  companies  men- 
tioned in  section  2478  or  any  electric  light  and  power  company 
and  any  water  company  or  any  heating  company  and  any  in- 
clined movable  or  rolling  road  company,  which  are  doing  busi- 
ness in  the  same  municipal  corporation  or  which  are  incorpor- 
ated and  organized  for  the  purpose  of  doing  business  in  the 
same  municipal  corporation,  may  consolidate  into  a  single  cor- 
poration in  the  same  manner  and  with  the  same  effect  as 
provided  for  the  consolidation  of  railroad  companies  in  sections 
3381,  3382,  3383,  3384,  3385,  3386,  3387,  3388,  3390,  3391, 
and  3392  of  the  Kevised  Statutes  and  any  and  all  acts  amenda- 
tory and  supplementary  to  said  sections.  [1904,  April  23,  97 
v.  281 ;  94  v.  315.] 

Sec.  2486  R.  S.  [Council  may  erect  or  purchase  gas  or  electric 
works.]1      The  council  of  any  city  or  village  shall  have  power, 


MUNICIPAL    LIGHTING    PLANTS.  663 

whenever  it  may  be  deemed  expedient  and  for  the  public  good, 
to  erect  gas  works  or  electric  works  at  the  expense  of  the  cor- 
poration, or  to  purchase  any  gas 2  or  electric  works  already 
erected  therein  ;3  provided,  that  in  villages  where  gas  works  or 
electrical  works  have  already  been  erected  by  any  person,  com- 
pany of  persons,  or  corporation,  to  whom  a  franchise  4  to  erect 
and  operate  gas  works  or  electric  works  has  been  granted,  and 
such  franchise  has  not  yet  expired,  the  council  shall,  with  the 
consent  of  the  owner  or  owners  purchase  such  gas  works  or  elec- 
tric works  already  erected  therein,  and  in  event  the  council  and 
owner  or  owners  of  any  such  gas  or  electric  works  shall  be 
unable  to  agree  upon  the  compensation  to  be  paid  for  such  gas 
works  or  electric  works,  the  council  may  file  in  the  probate 
court  of  the  county  where  such  gas  or  electric  works  are  lo- 
cated, a  petition  to  appropriate  such  gas  works  or  electric 
works,  and  thereupon  the  same  proceedings  of  appropriation 
shall  be  had  as  is  provided  for  the  appropriation  of  private 
property  by  municipal  corporation.5  Provided  that  any  muni- 
cipal contract  existing  between  any  village  and  such  person, 
company  of  persons  or  corporation  for  the  public  or  street 
lighting  shall  be  considered  as  an  element  of  value  in  fixing 
the  compensation  to  be  paid  for  such  gas  works  or  electric 
works.  [1902,  May  12 :  95  v.  599  ;  93  v.  59  ;  6Q  v.  219,  §  423 ; 
(S.  &S,  902;  S.  &C.  1535).] 

(1)  Power  to  erect  and  main-  own  plant.  State  ex  rel.  v.  Ham- 
tain  lighting  plants  is  also  given       ilton,  47  O.  S.  52. 

to  municipalities  in  paragraph  15,  And  company  is  not  deprived  of 
of  §  7  of  the  Code,  page  54.  vested  rights.  lb.  See  also  Ham- 
Other  similar  municipal  pow-  i^n  Gas  L.  and  C.  Co.  v.  Hamilton, 
ers.- Power  of  municipality  to  7  O.  F.  D.  358;  146  U.  S.  258. 
build  dams  for  certain  purposes,  Having  the  power  to  erect  gas 
erect  poles  to  transmit  electricity,  works>  municipality  has  the  right 
and  lay  pipes  for  conducting  natural  to  leyJ  taxes  to  meet  the  cost  of 
gas,  petroleum,  etc.,  will  be  found  such  works>  and  the  Property  of  a 
in  §  3878  Revised  Statues.  £as  company  within  its  limits  will 
,_.    ..,           .                  ....  De  subject  to  such  taxation.     Ham- 

(2)  Natural  gas  included.-  ilton  Gag  L  &  c  Co  v  Hamilton 
This  section  includes  natural  as  well  6  O    F   D    256  •  37  Fed    832 

as  artificial  gas  works.    Bellaire  Gob-  ^T  gection'     iyeg    authorit      to 

let  Co.  v.  Findlay  et  al,  5  C.  C.  purchase  and  erect  gas  and  electric 

418,  425.  plants.     It  was  held  not   to  be  in- 

Applicability   of  section.— This  consistent  with   §   2489  R.  S.,  now 

section  does  not  refer  to  works  al-  repealed.     The  latter  section  did  not 

ready  erected.     Columbus  v.  Kauff-  give  trustees  authority  to  bind  mu- 

man,  8  N.  P.  231.  nicipality   by  general   contract,   but 

(3)  Scope  of  power. —  Although  money  arising  from  the  operation 
company  was  organized  and  in  op-  of  the  works  could  be  used  inde- 
eration  at  passage  of  this  act,  mu-  pendently  of  council.  Kerr  v.  Belle- 
nicipality  may  purchase  or  erect  its  fontaine,  59  O.  S.  446. 


664 


THE    OHIO    MUNICIPAL    CODE. 


The    powers    given    in    this    sec-  See  Kerr  v.  Bellefontaine,   13  C 

tion  to  council  were  held  not  to  be  C.  24. 

superseded  by  powers  given  to  trus-  (4)    Who  can  grant  franchise. 

tees   under    §    2489   R.   S.    repealed.  — The  rights  to  use  streets  for  gas 

Dalzell,    Gilmore    and    Leighton    v.  purposes    is   a    franchise   and   must 

Findlay  et  al.,  5  C.  C.  435,  440.  emanate,  directly  or  indirectly,  from 

Management    of    gas    works. —  the  legislature.     State  v.  Cin.  Gas 

In  cities,  see  §  141  of  the  Code.  In  L.  and  C.  Co.,  18  O.  S.  262. 
villages,   see   §    205   of  the  Code.  (5)   See  §§  10  to  22  of  the  Code.  , 

Sec.  2489 — 1  It.  S.  [Trustees  of  natural  gas  plants;  may  sell  to 
village,  etc.;  delivery  of  gas  in  village.]  In  all  cases  where  any 
municipal  corporation  in  this  state  is  the  owner  of  a  natural 
gas  plant  by  which  the  citizens  of  said  municipal  corporation 
are  supplied  with  natural  gas,  and  such  natural  gas  is  so  sup- 
plied through  pipes  from  a  point  beyond  the  limits  of  such 
corporation,  which  pipes  pass  through  the  limits  of  an  incor- 
porated village,  the  trustees  *  of  any  such  natural  gas  plant 
are  hereby  authorized  to  sell  natural  gas  to  such  village,  or  to 
a  company,  for  the  use  of  such  village,  and  the  citizens  thereof, 
such  gas  to  be  delivered  at  a  reducing  station  to  be  located 
within  one  hundred  feet  of  the  main  pipe  line.      [87  v.  249.1 

(1)    See    §§    141   and  205  of  the  Code, 

Sec.  2489 — 2  E.  S.  [Delivery  of  gas  outside  of  village :  how 
allowed.]  Whenever  a  municipal  corporation  is  the  owner 
of  a  natural  gas  plant  to  supply  the  citizens  thereof  with 
natural  gas  for  fuel,  the  council  of  such  municipal  corporation, 
together  with  the  natural  gas  trustees,1  may  provide  for  sup- 
plying natural  gas  at  rates  to  be  determined  by  said  board  of 
trustees,  to  persons  living  outside  of  and  in  the  vicinity  of 
such  municipal  corporation,  and  to  county  infirmaries,  chil- 
dren's homes  and  other  public  institutions  within  or  without 
such  municipal  corporations;  and  to  encourage  the  location 
or  establishment  of  manufacturing  industries  within  such  mu- 
nicipal corporation  may  reduce  the  price  of  gas  to  be  used  to 
operate  such  manufacturing,  or  donate  the  same  for  a  term  of 
years  for  said  purpose;  provided,  that  this  section  shall  be 
inoperative  if  such  gas  so  to  be  furnished  for  such  purpose 
shall  deprive  the  municipal  corporation  or  the  citizens  thereof 
of  the  full  supply  of  such  gas.      [87  v.  249.] 

(1)    See'§§    141    and  205  of  the  Code. 

Sec.  2489 — 3  R.  S.  [Municipalities  authorized  to  lay  pipes  for 
natural  gas,  etc.,  outside  of  corporate  limits.]  Any  city  or  vil- 
lage authorized  and  empowered  by  any  general  or  special 
law  to  purchase  or  lease  lands,  purchase,  lease  or  sink  natural 


MUNICIPAL    LIGHTING    PLANTS.  665 

gas  wells,  procure  right  of  way,  purchase  and  lay  down  pipes, 
etc.,  for  the  purpose  of  supplying  such  city  or  village,  or  the 
citizens  thereof,  with  natural  gas,  is  hereby  authorized  and 
empowered  to  exercise  any  or  all  of  said  powers  outside  of  its 
corporate  limits.  And  all.  the  rights  and  powers  conferred 
upon  companies  by  sections  thirty-eight  hundred  and  seventy- 
eight  and  thirty-eight  hundred  and  eighty  (3878  and  3880), 
as  amended  March  24,  1888,  and  subject,  to  all  the  restrictions 
therein,  are  hereby  conferred  upon  the  cities  and  villages  above 
referred  to.      [86  v.  203.] 

Sec.  2490  R.  S.  [Laying  of  gas-pipes,  and  expense  thereof.] 
The  council  may  prescribe,  by  ordinance,  for  the  laying  down 
of  gas  pipes  in  all  highways  about  to  be  paved,  macadamized, 
or  otherwise  permanently  improved,  and  for  the  assessment 
of  the  cost  and  expense  thereof  upon  the  lots  or  parcels  of  land 
adjoining  or  abutting  upon  the  highways  in  which  the  same 
are  laid ;  but  in  no  case,  excepting  as  a  sanitary  measure,  shall 
the  council  require  any  house  connections  to  be  built  further 
from  the  main  pipe  than  the  outer  line  of  the  curb-stone. 
[66  v.  220,  §  427.] 

Sec.  2491  R.  S.  |  Contracts  to  supply  municipality  with  elec- 
tric light  or  gas.]  A  municipal  corporation  may  contract  with 
such  company  for  supplying,  with  electric  light,  natural  or 
artificial  gas,  for  the  purpose  of  lighting  or  heating  the  streets, 
squares  and  other  public  places  and  buildings  in  the  corpora- 
tion limits.1     [98  v.  150 ;  86  v.  62 ;  84  v.  39.] 

(1)  Company  organized  for  the  a  period  exceeding  ten  years  by  pro- 
manufacture  of  electrical  supplies  is  visions  of  §  2479  R.  S.  Gas  Co.  v. 
not  a  company  contemplated  by  this  Lima,  4  C.  C.  22. 
section.  Brush  Electric  Light  Co.  Interest  on  payments  overdue 
v.  Jones  Bros.  Elec.  Co.,  et  al.,  23  on  a  contract  to  supply  public  lights 
B.  329,  331.  may  be  collected  against  municipal- 
Power  of  municipality  to  ity.  Electric  Co.  v.  Toledo,  13  Dec. 
make  contract  for  lighting  streets,  137. 

etc.,  is  also  conferred  in  §  45  of  the  Contract  to  "furnish  light" 
Code  (p.  172)  and  certificate  of  au-  construed  to  include  agreement  to 
ditor  of  money  in  the  treasury  is  furnish  lamps.  Newark  v.  Light  & 
not  required.  As  to  requirement  Power  Co.,  3  O.  L.  R.  644. 
under  former  law,  see  Ampt  v.  Cin-  Restrictions  in  former  law. — 
cinnati,  2  N.  P.  332.  This  section  was  formerly  made  sub- 
Time  -of  contract  limited. —  ject  to  the  provisions  of  §3551  R. 
Municipality  cannot  contract  with  a  S.,  which  required  that  before  any 
company  for  lighting  or  heating  for 
Page  665 


666  THE    OHIO     MUNICIPAL    CODE. 

company  with  which  such  contract  Section  cited. — §  2491  R.  S.  is 
was  made  should  go  into  operation  cited  in  the  following  cases:  Find- 
where  a  company  had  already  been  lay  Gaslight  Co.  v.  Findlay,  2  C.  C. 
formed,  there  should  be  a  vote  of  237 ;  Toledo  v.  N.  W.  Ohio  Nat.  Gas 
the  electors.  This  restriction  is  Co.,  5  C.  C.  557,  571;  Bellaire  Gob- 
omitted  from  the  amendment  of  let  Co.  v.  Findlay,  5  C.  C.  418,  424; 
1906,  and  §  3551  has  also  been  Circleville  L.  &  P.  Co.  v.  Buckeye 
amended  omitting  the  restriction.  Gas  Co.,  69  O.  S.  259,  269. 

An  act  authorizing  the  issuing  of  bonds  of  municipal  corpora- 
tions for  enlarging,  improving  or  extending  natural  gas  works, 
and  providing  for  submitting  issuing  the  same  to  a  vote  of  the 
people. 

[§  1.]  [Municipalities  authorized  to  issue  bonds  for  purpose  o: 
improving  natural  gas  works.]  The  council,  board  of  legislation 
or  other  legislative  body  or  bodies  of  any  municipal  cor- 
poration of  the  state  of  Ohio  shall  have  power  to  issue  and 
sell  bonds  in  such  manner  as  is  provided  by  law  for  the  sale  of 
bonds  by  municipal  corporations,  at  a  rate  of  interest  not  ex- 
ceeding 6  per  cent.,  whenever  such  council,  board  of  legislation 
or  other  legislative  body  or  bodies,  by  an  affirmative  vote  of 
not  less  than  two-thirds  of  the  members  elected  or  appointed 
thereto  shall,  by  resolution  or  ordinance,  deem  the  same  neces- 
sary for  the  purpose  of  extending,  enlarging,  improving,  re- 
pairing or  securing  a  more  complete  enjoyment  of  any  natural 
gas  works  owned  by  such  municipal  corporation,  subject,  how- 
ever, to  the  provisions  of  section  2  of  this  act. 

[§  2.]  [Question  of  issue  to  be  submitted  to  vote.]  Before 
any  such  bonds  are  issued,  the  question  of  issuing  the  same 
shall  be  submitted  to  the  voters  of  the  municipal  corporation 
at  a  general  or  special  election,  whenever  the  council  of  any 
municipal  corporation  shall,  by  resolution  or  ordinance,  passed 
by  an  affirmative  vote  of  not  less  than  two-thirds  of  all  the 
members  elected  or  appointed  thereto,  declare  it  necessary  to 
issue  and  sell  the  bonds  of  such  municipal  corporation  for  any 
of  the  purposes  set  forth  in  section  1  of  this  act,  they  shall,  by 
such  resolution  or  ordinance  fix  the  date  upon  which  the  question 
of  the  issue  and  sale  of  such  bonds  shall  be  submitted  to  the 
electors  of  such  municipality,  and  shall  cause  a  copy  of  such 
resolution  or  ordinance  to  be  certified  to  the  deputy  state  super- 
visors of  the  county  in  which  such  municipal  corporation  is 
stituated,  and  such  deputy  state  supervisors  shall  thereupon  pro- 
ceed to  prepare  the  ballots  and  make  all  other  necessary  ar- 
rangements for  the  submission  of  such  question  to  the  electors 
of  such  municipal  corporation  at  the  time  fixed  in  such  resolu- 
tion or  ordinance.  Such  election  shall  be  held  at  the  regular 
place  or  places  of  voting  in  such  municipal  corporation,  and 
shall  be  conducted,  canvassed  and  certified  in  the  same  manner, 


MUNICIPAL    LIGHTING    PLANTS.  667 

except  as  otherwise  provided  by  law,  as  ^November  elections  in 
such  municipal  corporation  for  the  election  of  officers  thereof; 
provided,  however,  that,  when  a  special  election  for  such  pur- 
pose is  held  in  a  municipal  corporation  divided  into  wards, 
there  may  be  but  one  voting  place  in  each  ward,  which  shall 
be  designated  by  the  deputy  state  supervisors  of  elections,  and 
the  notice  hereinafter  provided  for  shall  designate  the  voting 
places  in  each  ward.  In  all  cities  in  which  registration  is  re- 
quired, if  but  one  voting  place  is  designated  in  each  ward, 
certificates  of  removal  shall  not  be  necessary,  except  where 
transfers  are  required  from  one  ward  to  another,  and  the  board 
of  deputy  state  supervisors  of  all  such  cities  shall  issue  such 
removal  certificates.  Fifteen  days'  notice  of  the  submission 
shall  be  given  in  one  or  more  newspapers  printed  therein  once 
a  week  for  two  consecutive  weeks,  stating  the  amount  of  bonds 
to  be  issued,  the  purpose  for  which  they  are  to  be  issued,  and 
the  time  and  place  of  holding  the  election;  and,  if  no  news- 
paper is  printed  therein,  the  notice  shall  be  posted  in  a  con- 
spicuous place  and  published  once  a  week  for  two  consecutive 
weeks  in  some  newspaper  of  general  circulation  in  the  mu- 
nicipal corporation.  If  two-thirds  of  the  voters  voting  at  such 
election  upon  the  question  of  issuing  the  bonds  vote  in  favor 
thereof,  then,  and  not  otherwise,  the  bonds  shall  be  issued,  and 
a  tax  may  be  levied  for  the  purpose  of  paying  the  interest  and 
principal  upon  such  bonds.  Those  who  vote  in  favor  of  the 
proposition  shall  have  written  or  printed  on  their  ballots,  in 
quotation,  "  For  the  issue  of  bonds  " ;  those  who  vote  against 
the  same  shall  have  written  or  printed  on  their  ballots  the 
words,  "  Against  the  issue  of  bonds."  [1904,  April  23,  97  v. 
237 ;  95  v.  478.] 

An  act  to  authorize  trustees  of  townships  and  councils  of  munici- 
palities to  make  additional  levy  for  the  purpose  of  drilling  an  oil 
or  gas  well  when  authorized  by  vote  of  the  electors  of  such  town- 
ship or  municipality. 

[§  1.]  [Township  trustees  and  council  of  municipality  au- 
thorized to  levy  tax  for  drilling  oil  or  gas  well.]  The  trustees  of 
any  township  or  council  of  any  municipality  in  the  state  of 
Ohio,  be,  and  the  same  are  hereby  authorized  to  levy  an 
additional  tax  not  exceeding  five  mills  on  the  dollar  in  addition 
to  the  tax  already  authorized  by  law,  when  so  authorized  by  a 
majority  vote  of  the  electors  of  such  township  or  municipality 
at  a  regular  or  special  election,  said  election  to  be  conducted 
the  same  as  elections  for  township  or  municipal  officers,  the 
same  to  be  collected  as  other  taxes,  for  the  purpose  of  drilling 
an  oil  or  gas  well  in  such  township  or  municipality.  [1902, 
May  9:  95  v.  449.] 


668 


THE    OHIO    MUNICIPAL    CODE. 


VII 


GAS  AND  WATER  COMPANIES. 

Sec.  3550 U.S.  [Powers  of  gas  and  water  companies.]  A  com- 
pany organized  for  the  purpose  of  supplying  gas  for  lighting 
the  streets  and  public  and  private  buildings  of  a  city,  village, 
town,  or  township,  may  manufacture,  sell,  and  furnish  the  gas 
required  therein  for  such  or  other  purposes;1  and  a  company 
organized  for  the  purpose  of  supplying  the  inhabitants  of  a  city, 
village,  town,  or  township  with  water  may  sell  and  furnish  any 
quantity  of  water  required  therein  for  such  or  other  purposes ;  2 
and  such  companies  may  lay  conductors  for  conducting  gas  or 
water  through  the  streets,  lands,  alleys>  and  squares  in  such 
City,  village,  town,  or  township,  with  the  consent  of  the  munici- 
pal authorities  of  the  city,  village,  or  town,  or  with  the  consent 
of  the  trustees  of  the  township,  and  under  such  reasonable 
regulation    as    they    may    prescribe.8       [64    v.    255,    §    53] 


(1)   Powers  of  gas  company. — 

Company  is  not  authorized  to  have 
exclusive  right  to  lay  its  conductors 
in  the  streets^  by  virtue  of  this  sec- 
tion. State  v.  Hamilton,  47  O.  S. 
52;  and  ordinance  granting  it  ex- 
clusive use  is  void.  Hamilton  v. 
Gas  Co.,  8  N.  P.  319.  See  also 
State  ex  rel.  v.  Cin.  Gas  Light  anc. 
Coke  Co.,  18  O.  S.,  262.  Gas  com- 
pany  organized  under  special  char- 
ter is  subject  to  the  general  laws 
of  the  state,  unless  clearly  exempt- 
ed by  the  terms  of  its  charter.  State 
ex  rel.  v.  Gas  Co.,  34  O.  S.  572. 

Company  organized  to  furnish  il- 
luminating gas,  under  earlier  laws, 
cannot  substitute  natural  gas. 
Findlay  Gas  Light  Co.  v.  Findlay, 
2  C.  C.  237. 

Company  organized  to  furnish  gas 


for  lighting  purposes,  may  amend 
its  charter  so  as  to  allow  it  to 
furnish  both  gas  and  electric  light- 
ing. Picard  v.  Hughey,  58  O.  S- 
577. 

Power  to  borrow  money  and  give 
mortgage,  see  Hays  v.  Galion  Gas 
Co.,  29  0.  S.  330;  Burt  v.  Rattle, 
31  O.  S.  116. 

(2)  Powers  of  water  company. 
— Such  company  has  no  right  to 
appropriate  property  under  this  sec- 
tion. State  v.  Salem  Water  Co., 
5  C.  C.  58. 

Regulation  of  price  of  water  by 
council,  see  §  2478  R.  S.,  p.  656. 

(3)  Conditions  which  may  be 
imposed. —  Council  can  only  impose 
such  restrictions  upon  the  use  of  the 
streets  by  such  companies  as  may 
protect  the  public  and  reimburse  the 


(JAS  AND  WATER  COMPANIES.  669 

city  for  expenses  of  inspection,  etc.,  Columbus  Gas  Co.,   14  Dec.  416;   2 

but  cannot  exact  a  sum  of  $4,000  N.  P.  (N.  S.)  37;  see  also  same  case, 

per  annum  as  a  revenue   from  the  15  Dec.  645;  3  N.  P.  (N.  S.)  293. 
use    of    the    streets.      Columbus    v. 

Sec.  3550a  R.  S.  [Gas  companies  and  electric  companies 
may  manufacture  and  supply  both  electricity  and  gas;  con- 
tracts with  municipality.]  Every  corporation  organized  under 
the  laws  of  this  state  to  manufacture  and  supply  artificial  gas 
for  light,  heat  and  power  purposes  or  for  any  [of]  such  pur- 
poses, and  every  corporation  organized  under  the  laws  of  this 
state  to  manufacture  and  supply  electricity  for  light,  heat  and 
power  purposes,  or  for  any  of  such  purposes,  shall,  in  addi- 
tion to  all  powers  heretofore  conferred,  have  power,  subject, 
however,  to  statutory  provisions  in  force  relating  to  the  grant- 
ing of  franchises  by  municipalities  for  either  of  said  purposes 
at  the  time  of  the  granting  of  the  franchise,  to  manufacture 
and  supply  electricity  and  artificial  gas,  respectively,  for  light, 
heat  and  power  purposes  and  to  make  all  contracts,  and  to  do 
all  things  necessary  and  convenient  for  furnishing  the  same 
for  both  public  and  private  objects;  provided  nothing  herein 
shall  be  held  to  confer  any  right  to  engage  in  any  such  busi- 
ness or  to  erect  or  maintain  any  structures  in  any  streets,  al- 
leys or  public  places  without  the  consent  of  the  municipality 
in  which  the  same  are  to  be  constructed,  and  all  ordinances 
and  resolutions  heretofore  passed  by  any  municipal  corpora- 
tion, and  all  contracts  heretofore  made  by  and  between  any 
municipality  and  any  company  so  organized  to  manufacture 
and  supply  gas,  which  were  and  still  are  intended  to  provide 
for  supplying  electricity  for  any  municipal  purpose  and  as  to 
which  the  time  of  performance  has  not  commenced  to  run  or 
has  not  expired,  shall  be  as  valid  and  binding  as  if  this  statute 
had  been  enforced  when  such  ordinance  or  resolution  was 
passed  or  any  such  contract  was  made.1  [98  v.  150;  97  v.  258; 
90  v.  291.] 

(1)    This   section,   before   amend-       be  subject  to  §  3551  as  it  then  read, 
ment    of    1906,    provided    that    con-       See  note  under  §  3551  infra. 
tracts  with  the  municipality  should 

Sec.  3551  R.  S.  [Contracts  to  supply  municipality  with  light 
and  water.]  The  municipal  authority  of  any  city  or  village 
or  the  trustees  of  any  township,  in  which  any  gas  or  water 
company  is  organized,  may  contract  with  any  such  company 


670  THE    OHIO     MUNICIPAL     CODE. 

for  lighting  or  supplying  with  water  the  streets,  lands,  lanes, 
squares  and  public  places  in  such  city,  village,  town  or  town- 
ship.1    [98  v.  150;  71  v.  93.] 

(1)  Contract  with  municipal-  relating  to  the  question  as  to  when 
ity. — See  §  45  of  the  Code,  where  a  vote  was  required  under  such  sec- 
such  contracts  are  authorized  to  tion,  see  Hunter  v.  Austin,  9  C.  C. 
be  made,  subject  to  the  provisions  583;  Circleville  L.  &  P.  Co.  v.  Buck- 
of  §3551  R.  S.,  and  are  exempted  eye  Gas  Co.,  69  O.  S.  259;  Gas  Co. 
from  the  requirement  of  a  certifi-  v.  Lima,  4  C.  C.  22. 
cate  of  money  in  the  treasury  be-  Liability  of  company. — Water 
fore  expenditure  is  made,  page  172.  company  is  not  liable  to  inhabitant, 

Restrictions  in  former  law. —  because  of  contract  with  municipal- 
Before  the  amendment  of  1906,  this  ity,  for  injury  due  to  failure  to  sup- 
section  provided  that  "no  such  com-  ply  water  for  fire  protection.  Blunk 
pany  shall  go  into  operation  in  any  v.  Dennison  Co.,  71  O.  S.  250. 
city  or  village  where  a  corporation  Power  of  company,  as  to  ap- 
has  been  already  formed,  or  is  here-  propriation  of  property,  denied, 
after  formed,  until  after  the  ques-  State  ex  rel.  v.  Water  Co.,  5  C.  C. 
tion   of  authorizing  such   operation  58. 

has  been  submitted  to  the  qualified  Section  cited,  see  State  ex  rel. 

voters  of  such  city  or  village,  and  Hamilton,  47  O.  S.  52,  69. 
authorized  by  ordinance."    For  cases 

Sec.  3552  It.  S.  [Gas  company  may  extend  pipes  beyond  city.] 
A  gas  company  in  any  city  or  village  may  extend  *  its  pipes 
used  for  conveying  gas  to  the  various  localities  and  inhabitants 
of  such  city  or  village,  to  any  point  or  place  in  the  vicinity  of 
such  city  or  village  outside  the  corporate  limits  thereof;  but 
the  right  of  way  must  be  obtained  from  the  corporate  or  other 
authorities,  or  person  having  control  of  the  places  to  be  affected 
by  such  extension.      [56  v.  92,  §  1 ;  (S.  &  C.  351).] 

(1)  When  extension  may  be  pany,  so  that  it  might  be  granted 
granted. —  As  to  what  would  an  extension,  see  Cincinnati  Gas 
amount    to    establishment    of    com-       Co.  v.   Avondale,  43  O.  S.  257. 

Sec.  3553  R.  S.  [Standard  measure  for  gas.]  The  standard 
or  unit  of  measure  for  the  sale  of  illuminating  gas  by  meter 
shall  be  the  cubic  foot,  containing  sixty-two  and  three  hundred 
twenty-one  one-thousandth  pounds  avoirdupois  weight  of  dis- 
tilled or  rain  water,  weighed  in  air,  of  the  temperature  of 
sixty-two  degrees  Fahrenheit's  scale,  the  barometer  being  at 
twenty-nine  and  one-half  inches.  [63  v.  164,  §  5;  (S.  &  S. 
159).] 


GAS    AND    WATER    COMPANIES.  C7l 

Sec.  3554  R.  S.     [Meter  must   be   sealed   and   stamped.]      No 

meter  shall  be  set  unless  it  is  tested  by  a  meter-prover,  sealed  and 
stamped  as  provided  in  section  thirty-five  hundred  and  fifty-six, 
and  any  company  authorizing  the  setting  of  a  meter,  or  allow- 
ing the  same  to  be  used  by  any  consumer  of  gas,  without  being 
so  sealed  and  stamped,  shall  forfeit  and  pay  not  less  than 
twenty-five  nor  more  than  one  hundred  dollars^  to  be  recovered 
upon  the  complaint  of  any  such  consumer,  in  the  name  of  the 
state,  before  any  court  of  competent  jurisdiction.  [64  v.  39, 
§  6;  (S.  &  S.  161).] 

Sec.  3555  R.  S.  [Gas  companies  to  furnish  certain  apparatus.] 
There  shall  be  provided,  at  the  expense  of  the  gas  companies 
of  this  state,  by  the  state  sealer  of  weights  and  measures,  at  the 
Ohio  state  university,  a  standard  measure  of  the  cubic  foot,  and 
such  other  apparatus  as  in  his  judgment  shall  be  necessary  for 
the  performance  of  his  duties  under  this  chapter.  [88  v.  123 ; 
63  v.  164,  §7;  (S.  &  S.  159).] 

Sec.  3556  R.  S.  [How  and  when  meters  in  use  to  be  tested.] 
Meters  in  use  shall  be  tested  on  the  request  of  the  consumer, 
in  his  presence,  if  desired,  with  a  meter-prover  tested  and  sealed 
as  provided  in  section  thirty-five  hundred  and  sixty-one,  by  an 
officer  or  servant  of  the  company;  if  the  meter  be  found  to  be 
correct,  the  party  requesting  the  inspection  shall  pay  a  fee  of 
twenty-five  cents,  and  the  expense  of  removing  the  same  for  the 
purpose  of  being  tested,  and  the  re-inspection  shall  be  stamped 
on  the  meter;  if  proved  incorrect,  no  fees  or  expense  shall  be 
paid  by  the  consumer,  and  the  company  shall  furnish  a  new 
meter  without  any  charge  to  the  consumer;  and  no  gas  com- 
pany shall  have  the  right  to  charge  rent  for  meters.  [64  v. 
39,  §  9;  (S.  &  S.  161).] 

Sec.  3557  R.  S.  [What  is  merchantable  gas.]  Illuminating 
gas  shall  not  be  merchantable  in  this  state  which  has  a  mini- 
mum value  of  less  than  twelve  candles  —  that  is,  a  burner 
consuming  five  cubic  feet  per  hour  shall  give  a  light,  as  meas- 
ured by  the  photometric  apparatus  in  ordinary  use,  of  not  less 
than  twelve  standard  sperm  candles,  each  consuming  one  hun- 
dred and  twenty  grains  per  hour ;  and  every  gas-meter  must  be 
tested  with  the  burner,  and  under  the  pressure  best  adapted 
to  it,  and  the  result  shall  be  calculated  at  a  temperature  of 
sixty  degrees  Fahrenheit      [64  v.  39,  §  10;  (S.  &  S.  162).] 

Sec.  3558  R.  S.  [Agents  of  company  may  enter  premises  to  in- 
spect meter.]  An  officer  or  servant  of  a  gas  company,  duly  au- 


672  THE    OHIO    MUNICIPAL    CODE. 

thorized  in  writing  by  the  president,  treasurer,  agent,  or  secre> 
tary  of  the  company,  may,  at  any  reasonable  time,  enter  any 
premises  lighted  with  gas  supplied  by  such  company,  for  the 
purpose  of  examining  or  removing  the  meters,  and  of  ascer- 
taining the  quantity  of  gas  consumed  or  supplied ;  and  if  any 
person,  at  any  time,  directly  or  indirectly,  prevent  or  hinder 
any  such  officer  or  servant  from  so  entering  any  such  premises, 
or  from  making  such  examination  or  removal,  such  officer  or 
servant  may  make  complaint  under  oath,  to  any  justice  of  the 
peace  of  the  county  wherein  such  premises  are  situate,  stating 
the  facts  in  the  case,  so  far  as  he  has  knowledge  thereof,  and 
the  justice  may  thereupon  issue  a  warrant,  directed  to  any  con- 
stable of  the  city  or  town  where  such  company  is  located, 
commanding  him  to  take  sufficient  aid,  and  repair  to  such  prem- 
ises, accompanied  by  such  officer  or  servant,  who  shall  examine 
such  meters  and  ascertain  the  quantity  of  gas  consumed  or 
supplied  therein,  and,  if  required,  remove  any  meters  belong- 
ing to  the  company.      [63  v.  164,  §  11 ;  (S.  &  S.  159).] 

Sec.  3559  R.  S.     [When  company  may  shut  off  the  gas.]  If 

any  person  so  supplied  with  gas  neglect  or  refuse  to  pay  the 
amount  due  for  the  same,  or  for  the  rent  of  the  meter,  or  other 
articles  hired  by  him  of  the  company,  the  company  may  stop 
the  gas  from  entering  the  premises  of  such  person;  in  such 
cases  the  officers,  servants,  or  workmen  of  the  gas  company  may, 
after  twenty-four  hours'  notice,  enter  the  premises  of  such 
parties,  between  the  hours  of  eight  in  the  forenoon  and  four 
in  the  afternoon,  and  take  away  such  meter,  or  other  property 
of  the  company,  and  may  disconnect  any  meter  from  the  mains 
or  pipes  of  the  company;  and  no  gas  company  shall  have  the 
right  to  refuse  to  furnish  gas  on  account  of  any  arrearages  due 
the  company  for  gas  furnished  to  former  occupants  of  the  same 
premises.      [63  v.  164,  §  12 ;  (S.  &  S.  160).] 

Sec.  3560  R.  S.  [Penalties  for  tampering  with  meters.]  Every 
person  who  willfully  or  fraudulently  injures,  or  suffers  to  be 
injured,  any  meter  belonging  to  any  gas  company,  or  prevents 
?ny  meter  from  duly  registering  the  quantity  of  gas  supplied 
through  the  same,  or  in  any  way  hinders  or  interferes  with  its 
proper  action  or  just  registration,  or  attaches  any  pipe  to  any 
main  or  pipe  belonging  to  such  company,  or  otherwise  burns 
or  uses  or  causes  to  be  used,  any  gas  supplied  by  such  company, 
without  the  written  consent  of  an  officer  thereof,  unless  the  same 
passes  through  a  meter  set  by  the  company,  or  fraudulently 
burns  the  gas  of  the  company,  or  waste [s]  the  same,  shall  'for 
every  such  offense,  forfeit  and  pay  to  the  company  not  more 


GAS    AND    WATER    COMPANIES.  673 

than  one  hundred  dollars,  to  be  recovered  in  an  action  brought 
by  the  company  against  such  offender,  and  in  addition  thereto, 
shall  pay  the  company  the  amount  of  damage  by  it  sustained 
by  reason  of  such  injury,  prevention,  waste,  consumption  or 
hindrance.      [63  v.  164,  §§  13,  14;  (S.  &  S.  160).] 

Sec.  3561  R.  S.  [Each  company  to  provide  certain  apparatus.] 
All  gas  companies  supplying  the  public  with  illuminating  gas 
which  are  not  supplied  with  such  apparatus,  shall  forthwith 
provide  for  their  use  a  meter-prover,  the  holder  of  which  shall 
contain  not  less  than  five  feet,  the  same  to  be  tested,  stamped, 
and  sealed  by  the  state  sealer  of  weights  and  measures,  at  the 
Ohio  state  university,  before  being  used,  and  a  photometer  for 
the  comparison  of  the  lights  of  gases  and  candles  by  means  of  a 
disk.1      [88  v.  123;  73  v.  227,  §  3;  (S.  &  S.  159).] 

( 1 )  Liability  imposed  here,  is  in- 
dependent of  negligence.  Gas  Fuel 
Co.  v.  Andrews,  50  O.  S.  695. 

Sec.  3561a  R.  S.  [Laws  made  applicable  to  natural  gas  com- 
panies in  certain  cities.]  The  provisions  of  this  chapter,  so  far 
as  the  same  may  be  applicable,  shall  apply  also  to  any  company 
organized  for  the  purpose  of  supplying  the  public  and  private 
buildings  and  manufacturing  establishments  of  all  cities  of 
the  third  grade  of  the  second  class,  having  a  population  not 
exceeding  16,000  at  [the]  federal  census  of  A.  D.  1880,  with 
natural  gas  for  fuel;  but  said  company  shall  be  liable  for  any 
damage  that  may  result  from  the  transportation  of  the  same, 
provided  the  township  trustees  shall  not  assent  to  the  laying 
down  of  any  line  of  pipes  in  any  township  of  this  state,  as  pro- 
vided in  sections  three  thousand  five  hundred  and  fifty  and 
three  thousand  five  hundred  and  fifty-one,  until  the  company 
or  corporation  proposing  to  lay  the  same  shall  obtain  the  assent, 
in  writing  of  a  majority  of  the  land-owners  whose  lands  may  be 
adjacent  to  the  road  or  highway  upon  which  said  line  of  pipes 
or  conductors  are  to  be  laid.      [1885,  May  1 :  82  v.  213.] 


674 


THE    OHIO    MUNICIPAL    CODE. 


VIII 

LIGHTING  OF  RAILWAYS  AND  BRIDGES.1 

Sec.  2494  R.  S.  [Council  to  pass  ordinance  to  light  bridge  or 
railway;  shall  not  require  railway  to  use  electric  arc  lights.]  2 
When  it  is  deemed  necessary  by  the  council  of  any  city  or 
village  to  have  any  bridge  or  railway,  located  in  whole  or  in 
part  in  such  corporation,  owned,  possessed,  or  operated  by  any 
individual,  company,  association  or  corporation,  or  any  portion 
of  the  same,  lighted,  the  council  shall  pass  an  ordinance  for 
that  purpose,  requiring  the  individual,  company,  association,  or 
corporation,  owning  possessing  or  operating  the  same,  to  light 
such  bridge  or  railway  within  a  specified  time  ;3  provided,  that 
it  shall  not  require  any  such  railway  or  portion  thereof  to  be 
lighted  with  electric  arc  lights.  [1902,  May  7 :  95  v.  419;  67 
(69)  v.  47,  §  429.] 


(1)  fitle,  division  and  chapter. 

—  Sections  carried  here  formed 
part  of  Chap.  4,  Div.  8,  Title  XII, 
R.  S.  None  of  the  sections  of  this 
chapter  are  re-enacted  by  the  Code. 
Those  sections  not  given  here,  are 
repealed  by  the  Code. 

(2)  This  section  is  given  as 
amended  May  7,   1902. 

(3)  Validity.  —  Law  requiring 
railroad  to  light  its  tracks  with- 
in city  or  village  is  constitution- 
al. C.  H.  &  D.  R.  R.  v.  Sullivan, 
32  O.  S.  152;  Ravenna  v.  Pennsyl- 
vania Ry.  Co.,  45  O.  S.  118;  C.  H. 
&  D.  R.  R.  v.  Bowling  Green,  57 
O.  S.  336. 

§§  2294  to  2498  R.  S.  are  valid. 
C.  C.  C.  &  St.  L.  Ry.  Co.  v.  Village 
of  St.  Bernard,  15  ^-  C.  588. 


Any  railroad. —  This  includes  a 
company  operating  the  road,  though 
neither  the  owner  nor  the  lessee. 
C.  H.  and  D.  R.  R.  v.  Bowling 
Green,  57  O.  S.  336. 

Requirements  must  be  reasona- 
b!e. —  Municipality  may  specify  the 
kind  of  light,  and  where  lights 
must  be  placed,  but  it  must  not 
act  unreasonably  or  arbitrarily.  C. 
C.  C.  &  St.  L.  Ry.  Co.  v.  Village 
of  St.  Bernard,  15  C.  C.  588;  C.  H. 
and  D.  R.  R.  v.  Bowling  Green,  57 
O.   S.  336. 

A  requirement  that  company  pro- 
ceed  within  twenty  days  from  re- 
ceipt of  notice  is  not  unreasonable. 
St.  Mary's  v.  Railroad,  60  O.  S.  136. 


LIGHTING    OF    RAILWAYS    AND    BRIDGES.  675 

FORM    OF   ORDINANCE    REQUIRING   RAILWAY    TO    BE   LIGHTED. 

Ordinance  No.  . 

Requiring    The Railroad    Company    to    light    its 

railway  within  the   city   [or  village]    of 

Be  it  ordained  by  the  council  of  the  city  [or  village]  of , 

State  of  Ohio: 

Sec.  1.  That  it  is  deemed  necessary  by  the  council  of  the  city  [or  vil- 
lage] of ,  to  have  the  railway  (or  a  certain  por- 
tion defined)    within  the  limits  of  said  city  [or  village]   lighted,  and  that 

The Railroad  Company  be,  and  it  is  hereby  required 

to  light  its  railway  within  the  limits  of  said  city  [or  village]  with 

and   erect [lamp   posts,    poles,   etc.,   as  required]    located   as 

follows :    ( Give  place  where  posts  are  to  be  placed )  ;    said 

[lamp-posts,  etc.]   shall  be  of (describe  style  of  lamp-posts, 

etc. )  ;  and  such  lights  shall  be  kept  burning  from to 

in    each    twenty-four    hours. 

Sec.  2.  That  the  clerk  be  and  he  is  hereby  directed  to  give  notice 
to  the Railroad  Company  of  the  passage  of  this  or- 
dinance, by  delivering  a  copy  thereof  to  said  company  or  the  person  or 
corporation  haviftg  possession,  charge  or  management  of  said  railway, 
[or  in  the  manner  provided  in  §  2496  of  the  Revised  Statutes  of  Ohio] 
and  if  said  railway  is  not  lighted  as  herein  required  within  twenty  days 
from  the  receipt  of  this  notice,  said  lighting  will  be  done  by  said  city 
[or  village]  and  the  expense  thereof  assessed  against  said  company  in 
the  manner  provided   by  law. 

Sec.  3.  This  ordinance  shall  take  effect  and  be  in  force  from  and 
after  the  earliest  period  allowed  by   law. 

Passed ,    19 


President  of  Council. 
Attest : 


Clerk. 

Sec.  2495  R.  S.  [Character  of  the  ordinance.]  The  ordi- 
nance shall  specify  the  manner  in  which  such  bridge  or  railway 
shall  be  lighted,  the  number  and  style  of  lamp-posts,  gas-posts, 
electric  lights  or  other  lights  and  fixtures  and  the  time  such 
lights  shall  be  kept  burning  in  each  twenty-four  hours.1  [91 
v.  147 ;  66  v.  220,  §  430.] 

(1)  Character  of  regulations. —  But  an  ordinance  providing  for 
A  city  or  village  has  authority  to  electric  lighting  when  municipal- 
prescribe  the  kind  of  light  to  oe  ity  contains  no  electric  plant  would 
used.  C.  H.  and  D.  E.  R.  v.  Bowl-  be  an  unreasonable  burden  and  void, 
ing  Green,  57  O.  S.  336.  lb.,   344. 


676 


THE    OHIO    MUNICIPAL    CODE. 


City  or  village  may  require  rail- 
road company  to  use  the  same  kind 
of  lamp  and  illuminating  material 
as  used  in  city  or  village.     lb. 

And  it  may  require  a  light  un- 
known at  the  time  of  the  enactment 
of  the  statute.  C  H.  &  D.  R.  R.  v. 
Bowling  Green,  9  C.  C.  524,  531. 


An  ordinance  requiring  a  com- 
pany to  light  its  tracks  and  speci- 
fying that  the  lamps  shall  be  light- 
ed the  same  hours  as  the  lamps  of 
the  village,  is  sufficiently  definite. 
C.  H.  and  D.  R.  R.  Co.  v.  Bowling 
Green,  57  O.  S.  336. 


Sec.  2496  It.  S.  [Notice  of  requirement  to  light  bridge  or  rail- 
way shall  be  given;  time  and  manner.]  Notice  of  such  require- 
ment to  light  any  bridge  or  railway  shall  be  given  at  least 
twenty  days  before  penalty  or  charge  shall  be  imposed  for 
default,  and  such  notice  may  be  given  by  delivering  to  any 
owner  or  part  owner,  or  any  person  having  possession,  charge 
or  management  of  such  bridge  or  railway,  a  written  or  printed 
copy  of  the  ordinance,1  provided,  however,  that  when  such 
ordinance  requires  the  lighting  of  a  railway,  service  of  such 
written  or  printed  copy  of  the  ordinance  upon  any  ticket  or 
freight  agent  of  such  railway  company  in  such  »city  or  village, 
and  if  there  be  no  such  ticket  or  freight  agent  in  such  city  or 
village,  upon  any  ticket  or  freight  agent  of  such  railway  com- 
pany in  the  county  wherein  such  city  or  village  is  located,  shall 
be  deemed  sufficient  and  shall  charge  the  person,  company,  cor- 
poration, or  partnership,  owning  or  operating  such  railway  with 
notice  of  the  passage  of  said  ordinance  and  the  requirements 
thereof.2      [1902,  May  6 :  95  v.  369;  66  v.  221,  §  431.] 


(1)   What     notice     required. — 

An  ordinance  requiring  the  lighting 
of  a  railway  is  not  rendered  void 
by  failure  of  village  to  notify  com- 
pany of  its  intentions.  C.  C.  C. 
and  St.  L.  Ry.  v.  St.  Bernard,  19 
C.  C.  299. 

The  notice  required  must  be  made 
only  when  a  penalty  or  charge  is  to 
be  imposed  for  default.  76.  See 
also  C.  C.  C.  &  St.  L.  v.  Village  of 
De  Graff,  20  C.  C.  710. 

No  fixed  time  for  performance 
necessary.—  §§  2492  to  2499  R.  S. 
should  receive  a  reasonable  con- 
struction, and  an  ordinance  will 
not  be  held  to  be  defective  as  fail- 
ing to  fix  a  specified  time  for  the 


performance  of  such  requirement  by 
the  company,  if  its  language,  tak- 
ing the  ordinance  altogether,  is 
sufficiently  definite  to  inform  the 
company  that  such  lighting  is  re- 
quired to  be  done,  how  it  is  to  ba 
done,  and  when  it  is  to  be  done.  St. 
Mary's  v.  Railroad,  60  O.  S.  136. 

(2)  Service  of  notice. —  Notice 
served  by  sending  registered  letter 
with  receipt  of  the  addressee,  is 
sufficient.  Bowling  Green  v.  C.  H. 
&  D.  R.  R.,  10  C.  C.  63,  68. 

And  notice  to  an  officer  of  the 
"  C.  H.  &  D.  Railway  Co."  instead  of 
Railroad  Co.  was  held  sufficient.  lb., 
69.  See  also  C.  H.  &  D.  v.  Bowling 
Green,  9  C.  C.   524,  526. 


LIGHTING    OF    RAILWAYS    AND    BRIDGES.  677 

Sec.  2497  R.  S.  [Procedure  on  failure  to  light  bridge  or  rail- 
way.] If  the  person,  company,  or  corporation,  owning,  pos- 
sessing, or  operating  such  railway  or  bridge,  neglect  or  fail  to 
do  such  lighting  in  conformity  with  the  provisions  of  the 
ordinance  for  twenty  days  after  notice  as  aforesaid,  the  council 
may  immediately  proceed  to  cause  the  lighting  to  be  done  at  the 
expense  of  such  person  or  persons,  company,  or  corporations.1 
[67  (69)  v.  47,  §  432.] 

(1)    Recovery. —  On     failure     of  Municipality  may  employ   pri= 

company  to  obey  ordinance  to  light,  vate  company. —  On  failure  of  rail- 
the  village  may  light  the  track  and  road  company  to  perform  •  munici- 
recover  in  an  action  against  the  pality  may  employ  a  private  corn- 
company.  C.  H.  and  D.  K.  R.  v.  pany,  pay  the  bill  and  collect  from 
Bowling  Green,  57  O.  S.  336.  the  company  in  an  action.  C.  H. 
A  village  may  recover  even  though  and  D.  R.  R.  v.  Bowling  Green,  9 
a  lamp  was  not  placed  on  the  track,  C.  C.  524,  530,  aff'd  57  O.  S.  336. 
if  the  track  was  lighted  and  al-  Amount  assessed  presumed 
though  the  lamp  also  lighted  a  right. —  Presumption  attaches  that 
street.  The  particular  location  of  the  action  of  council  was  regular 
the  lamp  is  not  material  if  it  ef-  and  the  amount  assessed  proper.  Vil- 
fect  its  purpose.  G.  C.  C.  and  St.  lage  of  St.  Mary's  v.  Railroad,  60 
L.  Ry.  v.  St.  Bernard,  19  C.  C.  299.  O.  S.  136,  148. 
See  also  C.  H.  and  D.  R.  R.  v. 
Bowling  Green,  9  C.  C,  524,  531. 

Sec.  2498  R.  S.  [Assessment  for  expense  of  such  lighting,  etc.] 
The  council  may  direct  the  manner  in  which  the  expense  of 
lighting  such  bridge  or  railway  shall  be  assessed  and  collected, 
and  when  assessed,  the  amount  shall  be  a  debt  due  against  and 
payable  by  such  person,  company,  or  corporation,  and  shall  be 
a  lien  1  to  be  enforced  as  any  other  lien  on  such  bridge  and  the 
land  on  which  the  same  is  built,  or  upon  the  real  estate  of  the 
railway  company  or  leasehold  interest  situate  or  being  within 
the  county  wherein  such  city  or  village  is  located.  [67  (69) 
t.  47,  §  433.] 

( 1 )    Expense     of     lien. —  When,  sessed  or  declared  a  lien  upon  any 

on  default  of  the  railway  company,  of   the   real   estate   of  the    railway 

the  lighting  is  procured  to  be  done  company    within    the    municipality, 

by  the  council,  the  expense  of  such  Railroad  Co.  v.   Sullivan,   32  O.    S. 

lighting  may,  by  the  council,  be  as-  152. 

FORM  OF   ORDINANCE   TO   ASSESS    EXPENSE   OF   LIGHTING 

RAILWAY. 

Ordinance  No. . 

To  assess  the  cost  and  expense  of  lighting rail- 
way within  the  limits  of  the  city   [or  village]   of 


678  THE    OHIO    MUNICIPAL    CODE. 

Be  it  ordained  by  the  council  of  the  city  [or  village]  of 

,  State  of  Ohio: 

Sec.  1.  That  to  pay  the  cost  and  expense  incurred  by  the  city  [or  vil- 
lage of ,  in  lighting  the railway 

(or  portion  thereof,  as   the  case  may  be)    within   the  limits  of  said  city 

[or  village]    in   the  manner  provided  in  an  ordinance  No 

passed ,  19 .... ,  requiring  the rail- 
road company  to  do  said  lighting,  and  after  the  passage  of  said  ordinance, 
and  the  failure  of  said  railroad  company  to  comply  with  its  requirements 
after  due  notice  as  required  by  law,  there  be  assessed  on  all  the  real 
property  or  leasehold  interest  of  The Railroad  Com- 
pany  within    the    county    of ,    the    sum    of 

dollars. 

Sec.  2.  That  the  amount  herein  assessed  upon  the  property  of  said 
railroad    company    shall    be    payable    to    the    treasurer    of    the    said    city 

[or  village]    within days  from   the  passage  of  this  ordinance, 

and  if  not  paid  as  herein  required,  the  solicitor  is  hereby  directed  to 
proceed  against  said  company  for  the  sum  so  due;  in  the  manner  provided 
by  law. 

Sec.  3.  This  ordinance  shall  take  effect  and  be  in  force  from  and  after 
the  earliest  period  allowed  by  law. 

Passed 19 


President    of   Council. 
Attest: 


Clerk. 

Sec.  2499 U.S.  [How  lien  may  be  enforced.]  The  charge 
may  be  collected  or  the  lien  enforced  in  the  manner  pointed 
out  in  the  chapter  providing  for  the  assessment  of  damages  and 
expenses   for  making  public  improvements.1      [66   v.    221,   § 

434.] 

(1)   Lien,    how    enforced.— See      PI.  &  D.  R.  R.,  10  C.  C.  63.     See  § 

C.  H.  and  D.  R.  R.  Co.  v.  Sullivan,      2286  et  seq.,  R.   S.  re-enacted   in   § 
32  O.  S.   152;   Bowling  Green  v.  C.      94  of  the  Code,   page  264. 


STEAM    KAILROADS    IN    MUNICIPAL    LIMITS.  679 


IX 

STEAM  RAILROADS  IN  MUNICIPAL 
LIMITS. 


1.  GENERAL  REGULATIONS. 

Sec.  247a U.S.  [Gates,  bells,  devices  or  flagmen  at  crossings.] 
When,  in  the  opinion  of  the  commissioner  of  railroads,  the 
public  safety  requires  that  a  gate  or  gates,  automatic  alarm- 
bell,  or  other  mechanical  device  be  erected  and  maintained  at 
any  place  where  a  public  road  or  street  is  crossed  at  the  same 
level  by  any  railroad,  and  which  crossing  has  been  declared  by 
said  commissioner  to  be  a  dangerous  one,  or  that  a  flagman  be 
stationed  and  maintained  at  such  dangerous  crossing,  he  shall 
give  the  superintendent,  manager  or  other  officer  in  charge  of 
such  railroad,  a  written  notice  that  the  same  is  required,  and 
such  company,  person  or  corporation  owning  or  operating  such 
railroad  shall  erect  or  station  the  same  within  such  time  there^ 
after  as  said  commissioner  shall  prescribe.  Any  company,  per- 
son or  corporation  neglecting  or  refusing  to  erect  or  maintain 
such  gate  or  gates,  automatic  alarm-bell,  or  other  mechanical 
device,  or  to  maintain  such  flagman,  when  so  required  as  afore- 
said, shall  forfeit  and  pay  to  the  state,  for  every  such  neglect  or 
refusal,  the  sum  of  one  hundred  dollars,  and  the  further  sum 
of  ten  dollars  for  every  day  while  such  neglect  or  refusal  shall 
continue.1      [91  v.  353;  86  v.  367.] 

( 1 )     Duties    of    flagman. —  See  person  injured   if  it  fails  to   exer- 

Ry.  Co.  v.  Schneider,  45  O.  S.  678.  cise  due  care  at  crossings.     lb. 

Flagmen  and  railroad  company  Street  railway  crossing  track. 
are  chargeable  only  with  ordinary  —  See  §  ( 3443-6 )  R.  S.  infra. 
care.  Street  Ry.  Co.  v.  Murray,  53  Street  railway  company  employes 
O.  S.  570,  583.  are  not  relieved  from  duty  by  stop- 
Liability  of  company. —  Persons  ping  the  car  and  going  forward,  as 
crossing  tracks  have  right  to  pre-  required  by  §  (3443-6)  because  the 
sume  that  gateman  is  exercising  due  flagman  has  signalled  that  crossing 
diligence.  Ry.  Co.  v.  Schneider,  45  is  open.  St.  Ry.  Co.  v.  Murray,  53 
O.  S.  678.  O.  S.  570,  583.  §  247a  and  § 
Company  is  liable  in  damages  to  (3443-6)    are   not  in  pari  materia. 

lb. 


680  THE    OHIO    MUNICIPAL    CODE. 

Sec.  247b  R.  S.  [Regulations  as  to  such  gates,  bells,  devices  or 
flagman.]  All  gates,  bells  or  devices,  which  by  the  provisions 
of  this  act  are  under  the  direction  of  the  commissioner  of  rail- 
roads, shall  be  built  in  such  a  manner,  and  within  such  a  time, 
and  of  such  material  as  shall  be  approved  by  the  commissioner 
of  railroads,  and  shall  be  located  on  the  highway  or  street,  on 
one  or  both  sides  of  the  railroad  track  or  tracks  as  the  commis- 
sioner may  deem  the  public  safety  to  require,  and  shall  be  so 
constructed  as,  when  closed,  to  obstruct  and  prevent  any  pas- 
sage across  such  railroad  or  railroads  from  the  side  on  which 
the  gate  may  be  located;  or  said  bell  shall  be  made  to  ring 
before  the  approach  of  each  and  every  train  of  cars  or  of  a 
locomotive  within  three  hundred  feet  of  such  crossing,  or  more, 
according  to  the  speed  of  the  train,  and  continue  to  ring  until  the 
train  of  cars  or  the  locomotive  shall  have  reached  the  crossing. 
There  shall  be  a  person  in  charge  of  every  such  gate  and  it  shall 
be  his  duty  to  close  the  same  at  the  approach  of  every  train  of 
cars,  or  of  a  locomotive,  and  to  keep  it  open  at  all  other  times. 
In  case  an  automatic  alarm  bell,  or  other  mechanical  device 
shall  be  required  at  any  such  crossing,  it  shall  be  the  duty  of 
the  railroad  company  at  all  times  to  keep  such  bell  or  device  in 
good  working  order.  For  every  neglect  of  such  duty  such  per- 
son or  railroad  company,  upon  conviction  thereof,  shall  pay  the 
sum  of  twenty-five  dollars.  When  more  than  one  railroad 
crosses  a  public  highway  or  street  at  such  dangerous  crossing, 
the  expense  incurred  in  the  erection  and  maintenance  of  gates, 
bells  or  device  provided  for  in  this  section,  and  of  the  necessary 
gatekeepers,  or  of  a  flagman,  shall  be  shared  equally  by  the 
railroad  companies  alongside  whose  tracks  the  gates,  bells  or 
device  shall  be  located.  Provided  that  an  automatic  alarm 
bell,  or  other  mechanical  device  as  provided  for  in  this  and  the 
preceding  section,  shall  not  be  erected  within  the  limits  of  any 
city  of  the  first  class  or  of  any  city  of  the  first,  second,  third, 
and  fourth  grades  of  the  second  class,  upon  the  order  of  the 
commissioner  of  railroads  and  telegraphs;  but  nothing  herein 
contained  shall  prohibit  any  railroad  company  from  using  such 
automatic  alarm  bell  or  other  mechanical  device,  if  it  desire, 
at  any  public  railroad  crossing  not  declared  dangerous  by  said 
commissioner  of  railroads  and  telegraphs ;  and  provided  further, 
that  where  a  gate  or  gates,  has  or  have  been  erected,  and  is  or  are 
maintained  by  the  railroad  company,  or  where  a  flagman  has 
been  stationed  and  is  maintained  by  the  railroad  company,  shall 
not  be  abandoned,  and  any  automatic  alarm  bell  or  other  me- 
chanical devices  be  substituted  therefor.  [91  v.  353;  86  v. 
367.] 


STEAM    RAILROADS    IN    MUNICIPAL    LIMITS.  681 

Sec.  247c  R.  S.  [Gates  or  flagmen  at  dangerous  crossings  in 
Hamilton;  duty  of  prosecuting  attorney.]  When,  in  the  opinion 
of  the  city  council  of  any  city  of  the  third  grade  b  of  the  sec- 
ond class,  the  public  safety  requires  that  a  gate  or  gates  be 
erected  and  maintained  at  any  place  where  a  public  road  or 
street  is  crossed  in  said  city  at  the  same  level  by  any  railroad, 
and  which  crossing  has  been  declared  by  said  council  to  be  a 
dangerous  one,  or  that  a  flagman  be  stationed  and  maintained 
at  such  dangerous  crossing,  council  shall  give  the  superintend- 
ent, manager  or  other  officer  in  charge  of  such  railroad,  a  writ- 
ten notice  that  the  same  is  required,  and  such  company,  per- 
son or  corporation  owning  or  operating  such  railroad  shall  erect 
or  station  the  same  within  such  time  thereafter  as  council  may 
prescribe.  After  said  notice  has  been  given  to  the  superin- 
tendent, manager  or  other  officer  in  charge  of  such  railroad 
that  the  same  is  required,  such  railroad  company  and  said 
council  shall  agree  as  to  whether  said  crossing  so  declared  to  be 
dangerous  shall  be  protected  by  a  gate  or  gates,  or  a  flagman; 
and  if  they  fail  to  come  to  any  agreement  within  ten  days, 
then  the  question  shall  be  submitted  to  arbitrators,  the  council 
selecting  one  person,  the  railroad  company  one;  the  two  thus 
selected  shall  choose  a  third.  The  arbitrators  thus  selected 
shall  decide  whether  said  dangerous  crossing  shall  be  protected 
by  a  gate  or  gates,  or  a  flagman,  and  their  decision  shall  be 
final.  Any  company,  person  or  corporation  neglecting  or  re- 
fusing to  erect  or  maintain  such  gate  or  gates,  or  to  maintain 
such  flagman  when  so  required  as  aforesaid,  shall  forfeit  and 
pay  to  the  state  for  every  such  neglect  or  refusal  the  sum.  of 
one  hundred  dollars,  and  the  further  sum  of  ten  dollars  for 
every  day  while  such  neglect  or  refusal  shall  continue.  Pro- 
vided further,  that  nothing  herein  contained  shall  be  construed 
as  conflicting  with  section  247a.      [91  v.  350.] 

[§  2.]  It  is  hereby  made  the  duty  of  the  prosecuting  at- 
torney of  the  proper  county,  upon  being  advised  of  the  viola- 
tion of  this  act,  to  immediately  commence  civil  action  against 
said  company,  person  or  corporation  in  the  name  of  the  state 
for  the  recovery  of  the  forfeitures  and  penalties  imposed  in 
this  act.      [91  v.  350.] 

Sec.  2500  R.  S.  [Regulation  of  rate  of  speed.]  *  When  a  rail- 
road track  is  laid  in  a  municipal  corporation,  the  council  may 
by  ordinance  regulate  the  speed  of  all  locomotives  and  railroad 
cars  within  the  corporate  limits :  provided,  such  ordinance  shall 
not  require  a  less  rate  of  speed  than  four  miles  an  hour,  and 
in  villages  having  a  population  of  two  thousand  or  less  it  shall 
not  be  fixed  at  a  less  rate  than  eight  miles  an  hour;  and  the 
corporate  authorities  may  by  civil  action,  recover  against  any 
engineer,   conductor,   or  company  violating  such  ordinance   a 


682  THE    OHIO    MUNICIPAL    CODE. 

sum  not  less  than  five  dollars  nor  more  than  fifty  dollars  for 
each  offense.2      [74  v.  132  ;  §  1 ;  (S.  &  C.  321).]    ' 

( 1 )  Title,  division  and  chapter,  of  negligence,  but  may  be  considered 
—  This  section  formed  part  of  sub-  by  the  jury  on  question  of  negli- 
division  1,  Chap.  5,  Div.  8,  Title  gence.  L.  S.  &  M.  S.  Ry.  Co.  v. 
XII,  R.  S.  All  sections  in  the  sub-  Johnston,  25  C.  C.  41 ;  1  C.  C.  (N. 
division  are  repealed  except  the  one  S.)  357;  Meek  v.  Pennsylvania  Co., 
here  given.  38  O.  S.  632 ;  Ry.  Co.  v.  Herrick,  49 

(2)  Liability  of  company.— A  O.  S.  25,  32;  Bell  v.  Pistorius,  18 
traveler  crossing  a  railroad  track  C.  C.  73;  and  L.  S.  &  M.  S.  R.  R. 
has  a  right  to  presume  that  the  Co.  v.  Ehlert,  19  C.  C.  177;  C.  H.  & 
company  will  conform  to  a  regula-  D.  Ry.  Co.  v.  Murphy,  17  C.  C.  223; 
tion,  passed  by  the  municipality,  Watson  v.  Erie  R.  R.  Co.,  8  N.  P. 
prohibiting  the  running  of  trains  at  18;  Ry.  Co.  v.  Trainer,  18  C.  C. 
a  greater  rate  of  speed  than  that  716;  Railroad  Co.  v.  McCormick,  24 
named  in  the  ordinance.  Hart  v.  C.  C.  86 ;  L.  S.  &  M.  S.  R.  R.  Co.  v. 
Devereux,  Receiver,  41  O.  S.  565.  Johnston,  25  C.  C.  41;  1  C.  C.   (N. 

The   fact  that  the   speed   allowed       S.)  357. 
by  ordinance  is  exceeded  is  not  proof 

Sec.  3283  It.  S.  [How  right  to  occupy  road,  street,  alley,  etc., 
may  be  acquired.]  If  it  be  necessary,  in  the  location  of  any 
part  of  a  railroad,  to  occupy  any  public  road,  street^  alley,  way, 
or  ground  of  any  kind,  or  any  part  thereof,  the  municipal  or 
other  corporation,  or  public  officers  or  authorities,  owning  or 
having  charge  thereof,  and  the  company,  may  agree  upon  the 
manner,  terms,  and  conditions  upon  which  the  same  may  be 
used  or  occupied  ;*  and  if  the  parties  be  unable  to  agree  thereon, 
and  it  be  necessary,  in  the  judgment  of  the  directors  of  such 
company,  to  use  or  occupy  such  road,  street,  alley,  way,  or 
ground,  such  company  may  appropriate  so  much  of  the  same  as 
may  be  necessary  for  the  purposes  of  its  road,  in  the  manner 
and  upon  the  same  terms  as  is  provided  for  the  appropriation 
of  the  property  of  individuals,  but  every  company  which  lays  a 
track  upon  any  such  street,  alley,  road,  or  ground,  shall  be 
responsible  for  injuries  done  thereby  to  private  or  public  prop- 
erty lying  upon  or  near  to  such  ground,  which  may  be  recov- 
ered by' civil  action  brought  by  the  owner2  before  the  proper 
court,  at  any  time  within  two  years  3  from  the  completion  of 
such  track.      [54  v.  133,  §  12 ;  S.  &  C.  278.] 

( 1 )    Scope     of     section. — This  A  city's  power  over  streets  is  not 

section  is  not  restricted  to  longi-  authorized  to  be  granted  away  by 
tudinal  use,  and  a  railroad  desiring  this  section.  Railroad  v.  Defiance, 
to  cross  a  street  must  enter  into  an       52  O.  S.  262. 

agreement   or   condemn.      This    sec-  This   section   does  not  give   to  a 

tion  is  not  limited  by  §  3284  R.  S.  municipality  the  power  to  agree 
\oungstown  v.  Railroad,  3  C.  C.  with  a  railway  company  for  the  per- 
214.  manent  and  exclusive  occupation  of 

Grant  to  fix  terminus  does  not  a  public  street  with  abutments  to 
include  right  to  cross  streets.  To  do  support  an  overhead  crossing  of  a 
this  requires  an  agreement  or  con-  railroad,  nor  can  such  occupation  be 
demnation.  Cincinnati  Northern  R.  rightly  gained  by  means  of  appro- 
R.  v.  Cincinnati,  8  B.  334.  priation.     L.  S.  &  M.  S.  Ry.  Co.  v. 


STEAM    RAILROADS   IN    MUNICIPAL    LIMITS. 


683 


Elyria,  69  O.  S.  414;  Cincinnati  v. 
L.  &  N.  R.  R.  Co.,  16  Dec.  628;  4 
N.  P.  (N.  S.)  217. 

As  to  the  effect  of  §  3337-1  R.  S., 
see  Cincinnati  v.  L.  &  N.  R.  R.  Co., 
16  Dec.  628;  4  N.  P.  (N.  S.)  217. 

State  board  of  public  works  can- 
not authorize  a  railroad,  under  pow- 
ers conferred  by  this  section,  to 
construct  a  road  on  the  berm  bank 
of  a  canal.  State  ex  rel.  v.  Rail- 
road, 37  0.  S.  157. 

Power  to  lay  a  track  across  a 
street,  conditioned  that  street  be 
restored  to  its  former  state,  does 
not  authorize  company  to  appropri- 
ate the  highway  so  as  to  materially 
interfere  with  public  travel.  Rail- 
road v.  Comm'rs,  31  O.  S.  338. 

And  a  municipal  corporation  can- 
not grant  the  exclusive  use  of  streets 
to  one  railway  company  to  the  ex- 
clusion of  all  others.  Railroad  v. 
Railroad,  36  O.  S.  251. 

The  municipal  corporation  can- 
not fix  the  compensation  to  be  paid 
for  the  use  of  a  track  belonging  to 
another  corporation.  Such  compen- 
sation must  be  fixed  by  a  jury.    76. 

The  city  authorities  may  give  per- 
mission to  lay  branch  tracks  for 
convenience  of  shippers.  P.  C.  & 
St.  L.  R.  R.  v.  Cincinnati,  16  B. 
367   (aff'd  no  report  24  B.  416). 

Occupation  of  streets  by  agree- 
ment. — An  agreement  by  a  munic- 
ipality with  a  railroad  granting  use 
of  streets,  the  company  agreeing 
to  make  and  gravel  streets,  cannot 
be  rescinded  without  consent  of 
railroad,  and  railroad  is  not  re- 
leased from  making  streets.  Rail- 
way v.  Carthage,  36  O.  S.  631. 

Railway  company  must  make 
street  in  a  reasonable  time  or  a 
right  of  action  accrues  to  munic- 
ipality, and  this  without  notice.  lb. 

The  manner  of  use  may  be  pre- 
scribed by  municipality  and  must 
be  observed  by  court  unless  fraudu- 
lent. Sargent  v.  O.  &  M.  R.  R.,  1 
Handy  52. 

But  a  condition  cannot  be  attach- 
ed by  a  municipality  compelling  the 
railroad  to  keep  a  watchman  at  a 
crossing.  Ravenna  v.  Pennsylvania 
Co.,  45  O.  S.  118,  123. 


The  county  commissioners  are  au- 
thorized by  this  section  to  contract 
with  a  railroad  company  as  to  the 
manner,  terms,  and  conditions  upon 
which  said  company  shall  occupy 
a  portion  of  a  public  road.  Me 
grue  v.  Comm'rs,  15  C.  C.  242. 

If  a  railroad  company  cannot 
agree  with  the  authorities  of  a  mu- 
nicipal corporation,  it  may  resort 
to  the  courts,  in  accordance  witi. 
the  terms  of  the  provisions  of  §§ 
6414-6453  R.  S.  State  ex  rel.  v. 
Railway,  37  O.  S.  157,  170. 

(2)  Rights  of  abutting  owners. 

— An  abutting  owner  has  a  right  of 
action  for  unlawfully  interfering 
with  travel  on  a  street.  Little  Mi- 
ami R.  R.  v.  Naylor,  2  O.  S.  235. 
See  tlso  Parrott  v.  C.  H.  &  D.  R.  R., 
10  O.  S.  624. 

But  he  has  no  right  of  action 
where  he  with  others  of  the  com- 
munity are  inconvenienced  by  noise, 
smoke,  and  vapors.  A  railroad  is 
not  a  private  nuisance.  Parrott  v. 
C.  H.  &  D.  R.  R.,  10  O.  S.  624; 
Fliehman  v.  C.  C.  C.  &  St.  L.  Ry., 
27  B.  302. 

But  substantial  injury  from 
smoke,  noise,  and  vapors  not  com- 
mon to  the  community  may  be  con- 
sidered. Railway  v.  Gardner,  45 
O.  S.  309.  See  also  C,  I.,  St.  L. 
&  C.  Ry.  v.  Pfitzer,  Goebel,  248; 
W.  &  L.  E.  R.  R.  v.  McLaughlin,  15 
C.  C.  1. 

And  a  person  whose  property  is 
not  on  the  same  street  as  the  rail- 
way may  recover  under  this  sec- 
tion. Shepherd  v.  B.  &  O.  R.  R., 
130  U.  S.  426;  W.  &  L.  E.  R.  R. 
v.  McLaughlin,  15  C.  C.  1;  Rail- 
road v.  Mowatt,  35  O.  S.  284. 

Property  situated  fifty  feet  from 
railroad  is  "near  to"  such  railroad 
within  meaning  of  this  section.  To- 
ledo Ry.  &  T.  Co.  v.  Meinen,  27  C. 
C.  208;  6  C.  C.  (N.  S.)  377. 

Claim  for  damages  is  a  personal 
one  and  is  not  assigned  by  a  con- 
veyance of  the  land.  Railroad  v. 
Campbell,  51  O.  S.  328. 

When  railroad  occupies  a  high- 
way, but  not  in  a  way  provided  by 
this    section,    the    abutting    owner, 


684 


THE   OHIO    MUNICIPAL    CODE. 


having  the  fee  in  the  lands  covered 
by  the  highway,  may  bring  an  ac- 
tion to  compel  railroad  company  to 
appropriate.  Railroad  v.  Williams, 
35  O.  S.   168. 

And  he  has  a  right  to  damages 
for  a  change  of  grade  of  street  by 
the  railroad.  Railroad  v.  Hamble- 
ton,  40  0.  S.  496. 

As  to  abutting  owner's  right  to 
enjoin  construction  of  railroad  in 
street,  where  his  property  rights  are 
about  to  be  taken,  see  note  "Use 
granted  to  railroad,"  under  §  28  of 
the  Code. 

As  to  abutting  owner's  rights 
against  the  municipality  for  injury 
to  his  property  abutting  on  the 
street  caused  by  a  railroad  con- 
structed under  municipal  authority, 
see  note,  "Use  granted  to  railroad," 
under  §  28,  page  113. 

The  section,  3283  R.  S.,  gives  a 
right  only  where  railway  is  con- 
structed in  street.  No  right  is 
given  where  railway  is  on  company's 
own  right  of  way.  Cincinnati,  etc., 
R.  R.  Co.  v.  Burski,  4  C.  C.  (N.  S.) 
98;  26  C.  C.  486.  See  also  Ross  v. 
Railway,  27  C.  C.  135;  5  C.  C.  (N. 
S.)  565  (aff'd  74  0.  S.  ). 

(3)    Limitation    of    actions. — 

The  limitation  of  two  years  applies 
to  incidental  injuries.  The  limita- 
tion for  taking  property  is  twenty- 


one  years.  Railroad  Co.  v.  U'B«rra, 
48  O.  S.  343. 

And  the  limitation  beginy  to  run 
when  the  track  is  completed  and 
ready  for  use.  Railway  v.  Gardner, 
45  0.  S.  309,  325. 

Suit  for  damages  for  change  of 
grade  must  be  brought  within  two 
years.  Railroad  v.  Mowatt,  35  O.  S. 
284. 

Failure  to  begin  suit  within  two 
years  does  not  extinguish  right  of 
action,  and  unless  the  question  is 
raised  by  answer  or  demurrer  the 
lapse  of  time  is  waived.  Railroad 
v.  Lersch,  58  O.  S.  639.      . 

Limitation  of  two  years  does  not 
apply  when  company  is  unlawfully 
in  the  street.  Railroad  v.  Cobb,  35 
O.  S.  94. 

See  further  as  to  limitation  of  ac- 
tions. Railroad  v.  Hambleton,  40  O. 
S.  496. 

Evidence. — It  is  error  to  allow 
a  witness  to  testify  how  much  less 
per  year  was  received  as  rent  for 
the  property  affected  since,  than  be- 
fore the  track  was  laid  in  front  of 
it.  Railway  v.  Gardner,  45  O.  S.  309. 

The  measure  of  damages  is  the 
difference  in  value  of  the  property 
before  and  after  the  alleged  injury 
from  cinders,  noise,  smoke,  etc.  To- 
ledo Ry.  &  T.  Co.  v.  Meinen,  27  C. 
C.  208;  6  C.  C.   (N.  S.)   377. 


Sec.  3284  E-.  S.  [May  divert  road  or  stream  when  necessary.] 
A  company  may,  whenever  it  is  necessary  in  the  construction 
of  its  road  to  cross  a  road  or  a  stream  of  water,  divert  the 
same  from  its  location  or  bed;1  but  the  company  shall,  without 
unnecessary  delay,  place  such  road  or  stream  in  such  condi- 
tion as  not  to  impair  its  former  usefulness,2  and' any  or  all 
railroads  hereafter  constructed,  which  shall  cross  any  avenue 
or  public  highway  leading  from  a  city  of  the  first  or  second 
class  to  a  public  cemetery  of  such  city,  situate  within  or  with- 
out the  limits  of  any  such  city,  shall  be  constructed  so  as  either 
to  pass  under  or  over  such  avenue  or  public  highway,  at  such 
elevation  or  depression  as  the  case  may  be,  as  will  allow  the 


STEAM    RAILROADS    IN    MUNICIPAL    LIMITS. 


685 


unobstructed  passage  of  all  wagons,  carriages,  or  other  vehi- 
cles which  it  may  be  necessary  for  any  person  to  use  upon  such 
avenue  or  public  highway.3      [50  v.  274,  §  16;  S.  &  C.  279. J 


(1)  Railway   diverting  road.— 

Under  this  section  railroad  may  di- 
vert a  highway,  but  it  must  put  the 
same  in  good  condition,  and  is  liable 
for  its  failure  to  do  so.  Railway 
v.  Maurer,  21  O.  S.  421;  Potter  v. 
Bunnell,  20  O.  S.  150. 

This  provision  is  substantially  the 
common  law  rule.  Railroad  v.  De- 
fiance, 52  O.  S.  262,  314. 

The  right  of  a  railway  to  use  its 
road  at  a  crossing  of  a  highway, 
and  the  right  of  public  to  use  high- 
way, are  equal.  Reasonable  care  and 
prudence  must  be  used  by  each. 
Railroad  v.  Maurer,  21  O.  S.  421. 

When  it  becomes  necessary  to  di- 
vert a  stream,  the  railroad  may  ap- 
propriate land  for  the  new  channel. 
Railway  v.  Bohm,  34  O.  S.  114. 

(2)  Restoring  highway.  —  The 
requirement  that  railroad  place  a 
highway  "  in  such  condition  as  not 
to  impair  its  former  usefulness  "  is 
a  condition  continuing  as  long  as  the 
company  enjoys  its  franchise.  State 
v.  Railroad,  36  O.  S.  434. 

The  attorney  general  may  enforce 
the  condition,  lb.;  and  court  may 
enjoin  company  from  using  high- 
way when  it  has  been  diverted  and 
left  in  a   dangerous  condition.     lb. 

The  right  of  the  state  is  not  af- 
fected   by    power    given    to    county 


commissioners  under  §  863  R.  S.  lb. 

If  the  company  occupying  the 
street  refuses  to  restore  it  to  its 
former  usefulness  to  the  public,  it 
may  be  compelled  to  do  so  by  man- 
datory injunction  without  compen- 
sation for  the  expense  of  removal. 
L.  S.  &  M.  S.  Ry.  Co.  v.  Elyria, 
69  O.  S.  414. 

The  company  being  compelled  to 
remove  an  obstruction  which  it  has 
placed  in  the  street,  cannot  claim 
that  such  removal  is  taking  its  prop- 
erty without  due  process  of  law. 
lb. 

(3)  Crossing  highway.  —  The 
crossing  of  city  streets  without  con- 
sent of  municipal  authorities  was 
not  intended  by  this  section.  Rail- 
road v.  Cincinnati,  8  B.  334.  See 
also  Youngstown  v.  Railroad,  3  C. 
C.  214. 

The  railroad  company  is  responsi- 
ble for  the  negligence  of  its  agents. 
This  section  imposes  a  personal 
duty.  Railroad  v.  Van  Dorh,  1  C. 
C.  292. 

And  where  it  agrees  to  keep  a 
bridge  in  repair,  is  jointly  liable 
with  the  city  for  failure  to  do  so. 
Toledo  Consolidated  St.  R.  R.  v. 
Sweeney,  8  C.  C.  298  (aff'd,  52  O.  S. 
616). 


Sec.  3310 — 1  R.  S.  [Electricity  as  motive  power  upon  rail- 
roads.] Upon  any  railroad  heretofore  or  hereafter  con- 
structed in  this  state,  electricity  may  be  used  as  a  motive 
power  in  the  propulsion  of  cars ;  provided,  however,  that  before 
any  line  of  poles  and  wires  shall  be  constructed  through  or 
along  the  streets,  alleys  or  public  grounds  of  any  municipal 
corporation,  plans  of  such  construction  shall  be  submitted  to 
and  approved  by  the  council  of  such  municipal  corporation. 
[91  v.  397.] 

Sec.  3320  R.  S.  [Passenger  trains  must  stop  at  certain  stations.] 
Each  company  shall  cause  three,  each  way,  of  its  regular  trains 
carrying  passengers,  if  so  many  are  run  daily,  Sundays  ex- 
cepted, to  stop  at  a  station,  city,  or  village,  containing  over 
three  thousand  inhabitants,  for  a  time  sufficient  to  receive  and 
let  off  passengers;   if  a  company,   or  any  agent   or  employe 


686  THE    OHIO    MUNICIPAL    CODE. 

thereof,  violate,  or  cause  or  permit  to  be  violated,  this  provi- 
sion, such  company,  agent,  or  employe  shall  be  liable  to  a  for- 
feiture of  not  more  than  one  hundred  nor  less  than  twentv- 
five  dollars,  to  be  recovered  in  an  action  in  the  name  of  the 
state,  upon  the  complaint  of  any  person,  before  a  justice  of  the 
peace  of  the  county  in  which  the  violation  occurs,  for  the  bene- 
fit of  the  general  fund  of  the  county ;  and  in  all  cases  in  which 
a  forfeiture  occurs  under  the  provisions  of  this  section,  the 
company  whose  agent  or  employe  caused  or  permitted  such  vio- 
lation shall  be  liable  for  the  amount  of  the  forfeiture,  and  the 
conductor  in  charge  of  such  train  shall  be  held,  prima  facie,  to 
have  caused  the  violation.1  [1889,  April  13:  86  v.  291;  Kev. 
Stat.  1880;  64  v.  142,  §  26;  (S.  &  S.  114;  S.  &  C.  282).] 


( 1 )  Validity. —  This  section  does  make  regulations  as  to  stoppage  of 
hot  violate  the  provisions  of  the  trains  is  subject  to  legislative  con- 
commerce  clause  of  the  U.  S.  Con-  trol,  and  to  such  a  provision  as  in 
stitution.  R.  R.  v.  State,  8  C.  C.  this  section.  Penn.  Co.  v.  Wentz, 
220   (aff'd,  37  B.  196).  37  O.   S.  333. 

The    power    of    the    company    to 


Sec.  3337 — 1  R.  S.  [Railroad  bridges  over  highways.]  §  1.  It 
shall  be  unlawful  for  any  person,  company  or  corporation  own- 
ing or  operating  any  railroad,  crossing,  or  that  may  hereafter 
cross,  over  and  above  any  street,  less  than  seventy  feet  in  width, 
in  any  city  in  this  state,  at  an  elevation  above  such  street,  suffi- 
cient to  permit  persons  to  pass  and  repass  along  such  street 
beneath  such  railroad  crossing,  to  place  or  cause  to  be  placed, 
or  to  suffer  or  permit  to  be  or  remain  in  such  street,  beneath 
such  railroad  crossing  or  bridge,  any  pier  or  other  stay  or  sup- 
port for  such  crossing  or  bridge  unless  the  placing  and  main- 
taining of  the  same  be  authorized  by  the  city  in  which  such 
crossing  is  situated,  by  ordinance  duly  passed,1  or  to  suffer  or 
permit  any  such  railroad  crossing  or  bridge  to  be  or  remain 
in  such  condition,  that  any  iron,  coal,  or  other  hard  substance, 
or  any  fluid  or  noisome  matter,  may  fall  or  drop  from  or 
through  any  such  crossing  or  bridge,  upon  persons  traveling 
or  passing  beneath  the  same ;  and  any  such  person,  company  or 
corporation  owning  or  operating  any  such  railroad,  failing  to 
comply  with  the  requirements  of,  or  violating  any  of  the  pro- 
visions of  this  section,  shall,  for  each  and  every  day  during 
the  continuance  of  such  failure  or  violation,  and  on  account 
thereof  forfeit  and  pay  to  such  city  the  sum  of  one  hundred 
dollars,  which  may  be  recovered  in  a  civil  action,  in  the  name 
of  such  city,  against  the  owner  or  operator  of  such  railroad,  or 
both,  as  the  city  may  elect,  and  thereafter  like  recovery  may  be 


STEAM    RAILROADS    IN    MUNICIPAL    LIMITS.  687 

had   in   like   manner,    for   subsequent  failures   and  violations 
aforesaid.      [1904,  April  23,  97  v.  301;  86  v.  197.] 

( 1 )  Viaduct  in  street,  even  with  ipality  to  give  such  consent  is 
consent  of  municipality,  would  be  a  shown.  Alexander  v.  Hy.  Co.,  2  N. 
nuisance  unless  authority  of  munic-      P.  (N.  S.)   59;  14  Dec.  102. 

Sec.  3337 — 2R.  S.  [Council  may  prohibit  switching,  obstruct- 
ing, whistling,  etc.]  §  2.  That  the  city  council  of  any  city 
may  prohibit  the  switching  of  freight  engines,  trains,  or  cars, 
over  or  on  said  crossing  or  bridge,  the  sounding  of  locomotive 
steam  whistles,  on  or  near  the  same,  and  the  standing  or 
stopping  of  any  railroad  engine  over  or  on  the  same,  and  may, 
by  ordinance,  constitute  the  same  an  offense,  and  provide  for 
the  punishment  of  any  person  committing  such  offense.  [86 
v.  197.] 

Sec.  3337 — 3  R.  S.  [Railroad  companies  must  build  and  main- 
tain highway  crossings,  etc.]  §  1.  All  railway  or  railroad  com- 
panies operating  a  line  or  lines  of  railway  in  this  state,  shall 
build  or  cause  to  be  built,  and  keep  in  repair  good  and  sufficient 
crossings  over,  or  approaches  to  such  line  or  lines,  of  railway, 
its  tracks,  sidetracks  and  switches,  at  all  points  where  any 
public  highway,  street,  lane,  avenue,  alley,  road  or  pike  is  now 
or  may  hereafter  be  intersected  by  such  lines  of  railway,  its 
tracks,  sidetracks  or  switches.  And  also  good  and  sufficient 
sidewalks  on  both  sides  of  streets  intersected  by  their  roads, 
the  full  width  of  the  right  of  way  owned,  claimed  or  occupied 
by  them;  and  as  to  crossings  and  approaches  outside  of  mu- 
nicipal corporations,  the  township  trustees  shall  have  power  to 
fix  and  determine  the  kind  and  extent  thereof,  and  the  time 
and  manner  of  constructing  the  same;  and  as  to  crossings, 
approaches  and  sidewalks  within  municipal  corporations,  the 
municipal  councils  shall  have  and  exercise  the  same  powers  as 
trustees  concerning  crossways  and  approaches  outside  of  mu- 
nicipalities, and  such  crossways,  approaches  and  sidewalks  shall 
be  constructed,  repaired  and  maintained  by  the  railroad  com- 
panies as  so  ordered.      [88  v.  261.]        * 

Sec.  3337 — 4  R.  S.  [Service  of  notice  on  railroad  companies.] 
§  2.  It  shall  be  the  duty  of  the  officer  or  officers  having  charge 
of  any  public  highway,  street  or  alley  intersected  by  any  line  of 
railway,  to  serve  a  written  notice  upon  the  nearest  station  agent 
or  section  foreman  having  charge  of  that  portion  of  the  railway 
where  such  intersection  occurs,  that  such  crossing,  approach 
or  sidewalk  as  herein  described  shall  be  built  or  repaired,  set- 
ting forth  the  kind  and  extent  thereof,  and  time  and  manner  of 
constructing  the  same,  as  ordered  by  the  council  or  trustees. 
[88  v.  261.] 

Sec.  3337 — 5  R.  S.  [When  crossing,  etc.,  must  be  completed, 
etc.]      §  3.  It  shall  be  the  duty  of  any  railway  company  so  noti- 


688  THE    OHIO    MUNICIPAL    CODE. 

fied,  to  comply  with,  said  notice  within  a  period  of  thirty  (30) 
days  from  and  after  receiving  such  notice,  and  on  failure  so  to  do, 
the  township  trustees,  or  council  as  the  case  may  be,  may  cause 
such,  crossing,  approach  or  sidewalk  to  be  constructed  or  re- 
paired as  before  ordered,  and  may  recover  the  cost  of  so  doing 
with  interest  thereon,  in  a  civil  action  against  the  railroad 
company,  in  the  name  of  the  trustees  or  municipality  as  the 
case  may  be,  before  any  court  of  competent  jurisdiction.  [88 
v.  261.] 

Sec.  3337 — 6R.  S.  [Crossings  must  be  kept  clear  of  snow.] 
§  4.  It  shall  be  the  duty  of  all  railway  companies  owning  or 
operating  any  line  of  railway  within  the  limits  of  the  state  of 
Ohio  to,  at  all  times,  to  keep  all  public  highways  now  or  here- 
after crossing  such  line  of  railroad,  clear  x>f  snow,  so  that  the 
same  shall  at  all  times  be  in  a  safe  and  convenient  condition  for 
travel  for  a  distance  of  fifty  (50)  feet  each  way  from  the  cen- 
ter of  said  railroad  along  such  highway.      [88  v.  261.] 

Sec.  3337 — 7R.  S.  [Penalties.]  §5.  Any  railroad  company 
which  shall  neglect  to  comply  with  the  terms  of  this  act,  shall 
be  liable  to  pay  damage  to  the  city,  village,  town  or  township  in 
which  the  highway  is  situated  in  the  sum  of  thirty  ($30)  dol- 
lars for  such  neglect,  and  a  further  sum  of  ten  ($10)  dollars 
per  day  for  each  and  every  day  such  railroad  company  fails 
or  neglects  to  comply  with  the  terms  of  this  act,  the  same  to 
be  recovered  in  an  action  brought  in  the  name  of  the  city,  vil- 
lage, town  or  township  as  the  case  may  be.  It  is  hereby  made 
the  duty  of  the  prosecuting  attorney  of  the  county  to  prose- 
cute to  judgment  any  claim  arising  under  the  foregoing  pro- 
visions, without  any  charge  to  the  said  city,  village,  town  or 
township.1      [88  v.  261.] 

( 1 )  Remedy  not  exclusive. —  violation  if  city  refuses.  Alexander 
Remedy  provided  in  this  section  is  v.  Ry.  Co.,  14  Dec.  102;  2  N.  P. 
not  exclusive  and  public  may  sue  for      (N.  S.)  59. 

Sec.  3337 — 18  R.  S.  [Required  height  of  bridges,  etc.,  over 
railroad  tracks;  cost.]  §  1.  All  bridges,  viaducts,  overhead 
roadways  or  foot-bridges,  wire  or  other  structure  hereafter  con- 
structed over  the  track  or  tracks  of  any  railroad  or  railroads 
within  the  state  of  Ohio,  by  any  county,  municipality,  town- 
ship, railroad  company,  or  other  private  corporation  or  person 
shall  be  of  such  height  as  to  be  not  less  than  twenty-one  feet  in 
the  clear  from  the  top  of  the  rails  of  said  track  or  tracks,  to 
said  wire  and  other  structure  or  to  the  bottom  of  the  lowest 
sill,  girder  or  cross-beam,  and  the  lowest  downward  projection 
on  such  bridge,  viaduct,  overhead  roadway  or  foot-bridge,  ex- 
cept in  cases  where  the  commissioner  of  railroads  and  tele- 
graphs shall  find  such  construction  is  impracticable,  and  in  every 
such  case  said  commissioner  shall  file  a  written  statement  in 


STEAM    RAILROADS    IN    MUNICIPAL    LIMITS.  689 

his  office  setting  forth  the  facts  relied  upon  by  him  in  making 
such  finding.  But  this  provision  shall  not  apply  to  any  main 
track.  Provided,  that  where  any  bridge,  viaduct,  overhead 
roadway  or  foot-bridge  over  a  railroad  track  or  tracks  is  re- 
built, it  shall  be  brought  under  the  provisions  of  this  act,  and 
in  such  case,  if  said  structure  is  at,  or  in  line  of,  a  public  street 
or  highway,  and  is  thus  erected  above  the  grade  of  any  such 
street  or  highway  and  any  cross-street  or  streets,  the  cost  of 
making  such  street  or  streets  or  highway  or  highways  conform 
to  such  new  grade,  and  all  damages  to  owners  of  property 
abutting  on  such  street  or  streets,  highway  or  highways,'  be- 
cause of  such  change  of  grade,  shall  be  ascertained  and  deter- 
mined, and  paid  as  follows:  Said  or  any  railroad  company 
or  its  assigns  shall  pay  all  costs  or  damages  resulting  as  afore- 
said, from  the  raising  or  building  of  any  of  its  bridges  or 
structures,  as  aforesaid,  in  the  line  of  any  street  or  highway  at 
a  greater  height  than  before  the  passage  hereof;  and  if  such 
company  is  only  part  owner  of  any  such  structure  it  shall  pay 
its  proportionate  share  of  the  cost  of  such  change  of  grade  and 
damages^  Should  a  railroad  company,  or  its  assigns,  raise  the 
grade  of  its  track  or  tracks  under  any  of  said  structures  not 
owned  by  it  after  the  passage  of  this  act,  thereby  causing  any 
said  bridge  or  structure  to  be  put  at  a  higher  grade  when  re- 
built, said  company  shall  pay  all  costs  and  damages  as  afore- 
said made  necessary  thereby.      [94  v.  297 ;  91  v.  365.] 

Sec.  3337 — 19  R.  S.  [Enforcement  of  act;  penalty;  injunction.] 
§  2.  It  is  hereby  made  the  duty  of  the  commissioner  of  railroads 
[and]  telegraphs  to  see  that  the  provisions  of  this  act  are  car- 
ried into  eifect;  and  every  railroad  company  in  the  state  of 
Ohio,  public  or  private  corporation,  or  person  building,  or  per- 
mitting to  be  built,  any  bridge,  viaduct,  overhead  roadway  or 
foot-bridge,  or  wire  and  other  structure  as  specified  in  sec- 
tion one  [§  (3337 — 18)]  of  this  act,  shall  file  with  the  said 
commissioner  plans  and  specifications,  and  first  receive  from 
him  a  permit  before  being  allowed  to  proceed  with  said  struc- 
ture and  the  erection  of  said  wire.  Any  person,  corporation, 
public  or  private,  violating  the  provisions  of  this  act,  upon 
conviction  before  a  court  of  competent  jurisdiction,  shall  be 
fined  any  sum  not  less  than  one  hundred  nor  more  than  one 
thousand  dollars;  and  every  day  that  said  structure  or  wire, 
not  in  conformity  with  the  provisions  of  this  act,  is  permitted 
to  remain,  shall  constitute  a  separate  offense.  The  observance 
of  the  provisions  of  this  act  may  be  enforced  by  injunction  on 
complaint  of  any  person,  corporation  or  board  interested 
therein.      [91  v.  365.] 


690  THE    OHIO    MUNICIPAL    CODE. 

Sec.  3339  R.  S.  [When  tracks  must  be  used  in  common.] 
When  two  or  more  companies  have,  in  the  same  street,  alley, 
public  way,  or  epening,  two  or  more  tracks  of  the  same  gauge, 
through  a  city  or  village,  the  council  of  such  city  or  village  may 
require  such  companies  to  use  such  tracks  in  common,  and  to 
pass  their  locomotives  and  cars  over  each  track  in  one  direction 
only.      [54  v.  133,  §  4;  S.  &  C.  325.] 

Sec.  6980a  R.  S.  [Unlawful  use  or  occupation  of  highways  by 
railway  companies  in  Cincinnati,  Cleveland  and  Springfield.]  It 
shall  not  be  lawful  in  cities  of  the  first  and  second  grades  of 
the  first  class  and  cities  of  the  third  grade  a  of  the  second  class 
for  any  railroad  company,  superintendent,  agent  or  other  em- 
ploye thereof,  either  directly  or  indirectly,  to  obstruct,  use  or 
occupy  any  street  or  other  public  highway  with  any  locomotive, 
cars,  cars  or  train,  by  permitting  or  suffering  such  locomotive, 
car,  cars  or  train  to  remain  upon  the  crossing  by  any  railroad 
of  such  street  or  other  public  highway,  or  any  part  thereof,  or 
by  coupling,  switching  or  shifting  of  locomotives,  cars  or  trains, 
or  the  making  up  of  trains  across  such  street  or  other  public 
highway,  or  any  part  thereof,  or  by  moving  or  stopping  long 
freight  trains  across  the  same,  for  a  period  longer  than  four 
minutes  at  one  time;  and  whenever  any  such  street  or  other 
public  highway  has  been  thus  obstructed,  used  or  occupied,  it 
shall  not  be  lawful  for  any  railroad  company,  superintendent, 
agent  or  other  employe  thereof,  either  directly  or  indirectly  to 
so  obstruct,  use  or  occupy  the  same,  or  any  part  thereof,  for  a 
period  of  five  minutes  thereafter; 

[Bars  or  gates  and  watchmen  in  Cincinnati  and  Cleveland.] 
And  in  cities  of  the  first  and  second  grades  of  the  first  class  any 
railroad  company  or  companies  so  using  such  street  or  other 
public  highway,  during  said  period  of  four  minutes,  shall  pro- 
vide and  maintain  suitable  bars  or  gates,  and  watchmen  at 
such  street  or  other  crossings,  to  secure  and  warn  the  public 
against  the  dangers  attending  such  use; 

[Penalty.]  And  if  any  railroad  company,  superintendent, 
agent  or  other  employe  thereof  shall,  either  directly  or  indi- 
rectly, obstruct,  use  or  occupy  such  street  or  other  public  high- 
way in  violation  of  the  aforesaid  provisions  and  prohibitions  of 
this  section,  or  shall  procure,  direct,  aid  or  abet  in  any^such 
violation,  he  or  they  shall  be  fined  not  more  than  one  hundred 
nor  less  than  twenty  dollars,  or  imprisoned  not  more  than  thirty 
days,  or  both. 

[First  right  to  use  or  occupancy.]  It  is  further  provided,  that 
after  the  expiration  of  said  period  of  five  minutes,  any  railroad 


GKADE    CROSSINGS.  690a 

1 

company  other  than  the  one  last  using  such  street  or  public 
highway,  shall  have  the  first  right  to  use  or  occupy  the  same 
for  a  period  not  to  exceed  four  minutes ; 

[Regular  trains.]  And  provided  further,  that  nothing  herein 
shall  be  so  construed  as  to  affect  or  interfere  with  the  arrival 
and  departure  of  regular  railroad  trains  moving  across  such 
street  or  other  public  highway  at  a  rate  of  speed  not  to  exceed 
six  miles  per  hour ;  or  to  any  regular  passenger  train  occupy- 
ing any  such  street  or  highway  for  a  period  less  than  ten  min- 
utes, for  the  purpose  of  discharging  or  taking  on  passengers 
and  baggage  at  any  of  its  regular  passenger  stations.  [90  v. 
188;  85  v.  113.] 

[Sec.  3333 — la.]  [Common  pleas  court  given  jurisdiction  to  as- 
certain and  define  manner  in  which  one  steam  railroad  shall  cross 
another  within  corporate  limits;  change  of  grade;  right  to  appeal.] 
That  where  it  becomes  necessary,  within  the  corporate  limits  of 
a  city  or  village,  for  the  track  of  a  steam  railroad  company  to 
cross  the  track  of  another  steam  railroad  company  unless  the 
manner  of  such  crossings  shall  be  agreed  to  between  such  com- 
panies, it  shall  be  the  duty  of  the  court  of  common  pleas  of 
the  county  wherein  such  crossing  is  located,  or  a  judge  thereof 
in  vacation,  on  application  of  either  party,  to  ascertain  and 
define  by  its  decree  the  mode  of  such  crossings  which  will  inflict 
the  least  practical  injury  upon  the  rights  of  the  company  own- 
ing or  operating  the  road  which  is  intended  to  be  crossed ;  and, 
if  in  the  judgment  of  such  court  or  such  judge  thereof,  it  is 
reasonable  and  practicable  to  avoid  a  grade  crossing,  it  shall 
hj  its  process  prevent  a  crossing  at  grade ;  but  in  changing  the 
grade  of  any  steam  railroad,  no  grade  shall  be  required  to 
exceed  the  established  maximum  or  ruling  grade  governing  the 
operations  by  engines  of  that  division  or  part  of  the  railroad 
on  which  the  improvement  is  to  be  made,  without  the  consent 
of  the  railroad  company,  nor  shall  the  railroad  company's  tracks 
be  required  to  be  placed  below  high  water  mark.  The  court 
shall,  in  its  order,  equitably  apportion  the  initial  expense  of 
such  construction  or  crossing  and  the  expense  of  maintenance 
thereof  among  the  parties  interested.  Any  party  feeling  itself 
aggrieved  by  the  decision  of  said  court  shall  have  the  right  of 
appeal  as  in  other  civil  cases.  Nothing  in  this  act  shall  pre- 
vent any  railroad  company  from  laying  additional  tracks  at 
existing  crossings.      [1904,  May  3,  97  v.  537.] 

An  act  to  provide  how  railroad  and  highway  crossings  may  be 
constructed. 

[Sec.  1.]      [Railroad  and  highway  crossings  shall  be  above  or 


690b  THE    OHIO    MUNICIPAL    CODE. 

below  grade.]  Except  as  in  this  act  elsewhere  provided,  all 
crossings,  hereafter  constructed,  whether  of  highways  by  rai- 
roads,  or  of  railroads  by  highways,  shall  be  above  or  below  the 
grade  thereof. 

[Sec.  2.]  [Railroad  crossing.]  Every  railroad  company  con- 
structing a  new  line  of  railroad,  under  its  charter  powers,  across 
a  highway,  shall  construct  the  same  above  or  below  the  grade 
of  the  highway,  unless  permitted  in  the  manner  hereinafter 
provided,  to  construct  the  same  at  grade;  and  such  railroad 
company  may  exercise  the  power  contained  in  its  charter  and 
the  general  laws,  for  altering  the  grade  and  location  of  high- 
ways in  order  to  avoid  grade  crossings. 

[Sec.  3.]  [Highway  crossings.]  Every  municipality  or  other 
authority  hereafter  constructing  a  highway  across  an  existing 
railroad,  shall  construct  the  same  above  or  below  the  grade 
thereof,  unless  permitted  in  the  manner  hereinafter  provided, 
to  construct  the  same  at  grade,  and  the  cost  of  said  work  shall 
be  paid,  one-half  by  said  municipality,  and  one-half  by  the  rail- 
road company  owning  said  railroad, 

[Sec.  4.]  [When .such  crossings  may  be  at  grade;  common  pleas 
court  given  jurisdiction  to  determine.]  Whenever  it  shall  be 
desired  by  any  railroad  company  constructing  a  new  railroad, 
or  by  any  municipality  or  authority  constructing  a  new  high- 
way that  the  railroad  or  highway  should  be  so  constructed  that 
the  railroad  and  highway  shall  cross  each  other  at  the  same 
grade,  a  petition  shall  be  presented  by  the  party  desir- 
ing such  construction  to  the  court  of  common  pleas  of  the 
county  within  which  said  crossing  is  situated  upon  ten  days' 
notice  to  the  corporation  owning  said  railroad,  or  to  such  mu- 
nicipality or  authority,  describing  the  proposed  construction, 
and  setting  forth  the  reasons  that  are  supposed  to  make  the 
same  necessary  or  desirable;  aud  the  court  of  common  pleas 
shall  thereupon  have  jurisdiction  of  the  parties  and  the  subject 
matter  of  such  petition,  and  may  proceed,  summarily  or  other- 
wise, and  upon  such  notice  as  it  shall  deem  sufficient,  to  ex- 
amine the  matter,  either  by  evidence,  by  reference  to  a  master 
commissioner  or  otherwise ;  and,  if  satisfied  that  such  construc- 
tion is  reasonably  required  to  accommodate  the  public,  or  to 
avoid  excessive  expense,  in  view  of  the  small  amount  of  traffic 
on  the  highway  or  railroad,  or  in  view  of  the  difficulties  of 
other  methods  of  construction,  or  for  other  good  and  sufficient 
reasons,  then  it  shall  make  an  order  or  orders  permitting  such 
crossing  at  grade  to  be  established;  and  it  may,  in  such  order, 
in  its  discretion,  prescribe  that  gates,  signals,  or  other  safe- 
guards shall  be  maintained  by  the  railroad  company,  in  addi- 
tion to  the  signals  and  safeguards  prescribed  by  statute,  and 


GRADE  CROSSINGS.  691 

all  such  orders  shall  be  binding  upon  the  parties  and  shall  be 
observed  by  them.  All  costs  and  expenses  of  the  proceedings 
shall  be  ascertained  and  allowed  by  the  court  of  common  pleas 
and  shall  be  paid  by  such  party  as  it  shall  decide,  or  by  it 
apportioned  between  the  parties,  and  may  be  collected  by  ex- 
ecution out  of  said  court.1 

Applies    to    steam     railroads  Power  of  court. — Determination 

only. — In  re  A.  B.  &  S.  Ry.  Co.,  by  court  does  not  dispense  with 
16  Dec.  87;  3  N.  P.  (N.  S.)  561.  agreement     with     municipality     or 

condemnation.    lb. 

[Sec.  5.]  [Right  of  appeal.]  Either  party  feeling  itself  ag- 
grieved by  the  decision  and  order  of  said  common  pleas  court 
shall  have  the  right  of  appeal,  as  in  other  civil  cases. 

[Sec.  6.]  [Additional  tracks,  switches,  etc. ;  how  constructed.] 
Nothing  in  this  act  shall  prevent  any  railroad  company  from 
laying  additional  tracks  at  crossings  previously  existing,  or 
from  constructing  switches,  sidings  and  branch  lines  from  their 
lines  of  railroad  now  or  hereafter  constructed  to  any  mill,  fac- 
tory, or  other  manufacturing  establishment,  or  other  industrial 
plant,  or  any  elevator,  wharf  or  pier,  or  gravel,  marl,  or  clay 
bed,  or  any  mine,  or  from  laying  additional  track  to  increase 
their  yard  facilities  at  terminal  or  other  points  across  public 
highways  at  the  grade  thereof,  but  §uch  signposts  and  signals 
shall  be  employed  for  the  protection  of  such  crossings  as  are 
by  law  prescribed  for  railroad  crossings  of  public  highways. 
[1904,  May  3,  97  v.  546.] 

2.  ABOLISHING  GKADE  CROSSINGS. 

An  act  to  abolish  grade  crossings  in  municipal  corporations. J 
[Sec.  1.]  [Grade  crossings  in  municipalities;  municipalities  may 
abolish.]  Any  municipal  corporation  may  raise  or  lower,  or 
cause  to  be  raised  or  lowered,  the  grade  of  any  street  or  way 
above  or  below  any  railroad  tracks  therein,  and  may  require 
any  railroad  company  operating  a  railroad  in  such  municipal- 
ity to  raise  or  lower  the  grade  of  its  tracks  and  may  construct 
ways  or  crossings  above  the  tracks  of  any  railroad,  or  require 
the  railroad  company  to  construct  ways  or  crossings  that  are 
to  be  passed  under  its  tracks,  whenever,  in  the  opinion  of  the 
council,  board  of  legislation  or  other  legislative  body  the  rais- 
ing or  lowering  of  the  grade  of  any  such  railroad  tracks,  or 
the  raising  or  lowering  or  construction  of  such  ways  or  cross^ 
ing  may  be  necessary,  upon  the  terms  and  conditions  herein- 
after set  forth  in  this  act. 

(1)    Other  provisions  applying  the  present  act  so  far  as  they  relate 
to  both  municipalities  and  counties  to  municipalities, 
and  relating  to  grade  crossings  are  Constitutionality  of  this  act  de- 
contained       in       §    (3337 — 8)       to  clared.     East   End   B.   &  T.   Co.  v. 
(3337—17)  R.   8.,   inclusive.     These  Cleveland,  14  Dec.  33. 
sections  are  probably  superseded  by 


692 


THE    OHIO    MUNICIPAL    CODE. 


[Sec.  2.]  [Preparation  of  plans  and  specifications  by  railroad 
company  and  city  engineer.]  The  council,  board  of  legislation 
or  other  legislative  body  of  any  such  municipality,  for  the 
purpose  of  making  or  causing  any  such  improvement  to  be 
made,  may,  by  ordinance,  require  the  railroad  company,  in 
co-operation  with  the  engineer  of  such  municipality,  or  the 
engineer  designated  in  said  ordinance  by  the  council,  board  of 
legislation  or  other  legislative  body,  to  prepare  and  submit  to 
said  council,  board  of  legislation  or  other  legislative  body, 
within  six  months,  unless  longer  time  is  mutually  agreed 
upon,  plans  and  specifications  for  such  improvement,  specify- 
ing the  grades  to  be  established  for  the  streets,  and  the 
height,  character  and  estimated  cost  of  any  viaduct  or  any 
way  above  or  below  any  railroad  tracks,  and  the  change  of 
grade  required  to  be  made  of  such  track,  including  side  tracks 
and  switches;  but  in  changing  the  grade  of  any  railroad,  .no 
grade  shall  be  required  to  exceed  the  established  maximum  or 
ruling  grade  governing  the  operations  by  engines  of  that  division 
or  part  of  the  railroad  on  which  the  improvement  is  to  made, 
without  the  consent  of  the  railroad  company,  nor  shall  the 
railroad  company's  tracks  be  required  to  be  placed  below  high 
water  mark. 

[Preparation  of  such  plans  and  specifications  by  city  engineer 
upon  refusal  of  railroad  company  to  co-operate  in  preparation; 
duty  of  Circuit  Court  as  to  settlement  of  differences  between  rail- 
road company  and  city.]  If  at  the  expiration  of  said  six  months 
the  railroad  company  shall  have  refused  or  failed  to  co-operate 
in  the  preparation  of  said  plans  and  specifications,  the  en- 
gineer of  such  municipality,  or  the  engineer  designated  by 
said  council,  board  of  legislation  or  other  legislative  body,  is 
hereby  empowered  to  prepare  and  submit  same  to  said  council, 
board  of  legislation  or  other  legislative  body,  and  if  said  plans 
and  specifications  are  not  satisfactory  to  said  council,  board 
of  legislation  or  other  legislative  body  and  said  railroad  com- 
pany, and  cannot  be  made  so  by  mutual  agreement  within  a 
further  period  of  three  months,  and  in  the  event  that  either 
the  municipality  or  the  railroad  company  shall  not  consent  to 
the  making  of  such  improvements  according  to  the  plans  and 
specifications  submitted,  then  and  in  that  case  said  plans  and 
specifications^  together  with  the  points  of  difference  between 
the  council,  board  of  legislation  or  other  legislative  body  and 
the  railroad  company  may  be  submitted  by  either  party  to  the 
circuit  court  having  jurisdiction  in  the  county  in  which  said 
municipality  is  situated,  which  court  shall,  after  examination 
of  such  plans  and  specifications,  and  after  hearing  the  evi- 
dence, make  a  finding  as  to  whether  or  not  the  public  safety 


GBADE    CROSSINGS.  693 

requires  such  improvement  to  be  made,  and  whether  or  not 
said  plans  and  specifications  are  reasonable  and  practicable; 
and  if  such  court  finds  such  improvement  is  necessary  to  the 
public  safety,  and  that  the  plans  are  reasonable  and  practicable, 
the  municipality  shall  be  required  to  make  such  improve- 
ments to  its  streets  as  may  be  necessary,  and  vthe  railroad  com- 
pany be  required  to  make  the  changes  necessary  to  its  tracks 
and  roadbed,  in  order  to  comply  with  the  rulings  of  the  court ; 
but  if  the  court  finds  that  the  improvement  is  not  necessary  to 
the  public  safety,  or  that  the  plans  and  specifications  are  not 
reasonable  and  practicable,  then  the  improvement  shall  not  be 
made  upon  said  plans.  And  if  more  than  one  railroad  com- 
pany owns  tracks  on  the  crossing  in  question,  then  the  said 
circuit  court  shall  apportion  the  part  of  the  expense  payable 
by  the  railroad  companies  between  or  among  the  said  railroad 
companies.  The  word  "  company  "  in  this  act  is  intended  to 
include  also  the  words  "  company  or  companies." 

[Sec.  3.]  [Apportionment  of  cost  between  city  and  railroad  com- 
pany.] The  cost  of  the  construction  of  the  improvement  au- 
thorized, including  the  making  of  ways,  crossings  or  viaducts, 
above  or  below  the  railroad  tracks,  and  also  including  the 
raising  or  lowering  of  the  grades  of  the  railroad  tracks  and 
side  tracks  for  such  distance  as  may  be  required  by  such  mu- 
nicipality and  made  necessary  by  such  improvement,  together 
with  the  cost  of  any  land  or  property  purchased  or  appropri- 
ated, and  damages  to  owners  of  abutting  property,  or  other 
property,  shall  be  borne  one-half  by  any  such  municipality  and 
one-half  by  any  such  railroad  company  or  companies ;  and  any 
such  municipality  shall  have  the  right  of  action  against  any 
such  railroad  company  for  the  recovery  of  the  one-half  of  such 
costs  payable  by  such  railroad  company  with  interest  from  the 
time  they  become  due;  and  any  such  municipality  and  rail- 
road company  may  agree  as  to  what  part  of  such  work  shall  be 
done  by  such  railroad  company,  and  also  fix  the  amount  which 
shall  be  allowed  or  credited  to  such  railroad  company  for  do- 
ing such  work;  and  such  railroad  company  shall  be  entitled 
to  deduct  from  half  the  cost  of  such  improvement  the  ex- 
pense and  costs  incurred  by  it  in  the  change  of  its  grade 
required  by  such  municipality  or  made  necessary  by  such 
improvement  under  such  specifications,  but  only  in  case  the 
amount  of  such  cost  and  expense  has  been  agreed  upon  in 
writing  between  the  municipality  and  the  railroad  company, 
and  if  the  amount  of  work  that  may  be  done  by  the  railroad 
company,  or  made  necessary  by  reason  of  such  change  of  grade 
on  lowering  or  raising  its  tracks,  exceeds  one-half  of  the  cost 
of  the  improvement,  then  such  railroad  company  shall  have 


693a  THE   OHIO    MUNICIPAL    CODE. 

the  right  to  recover  the  amount  with  interest  in  excess  of  one- 
half  the  costs  and  expenses,  in  an  action  at  law  against  such 
municipality, 

[Notice  of  intention  to  make  improvement.]  provided  how- 
ever that  before  any  work  shall  be  done  which  may  be  required 
in  the  making  of  such  proposed  improvement,  the  council,  beard 
of  legislation  or  other  legislative  body  of  said  municipality 
shall  by  ordinance  or  resolution  require  notice  of  its  intention 
to  make  such  improvement  in  accordance  with  said  plans  and 
specifications  to  be  given,  after  the  manner  provided  by  sec- 
tion 52  of  an  act  entitled  "An  act  to  provide  for  the  organiza- 
tion of  cities  and  incorporated  villages,  and  to  restrict  their 
power  of  taxation,  assessment,  borrowing  money,  contracting 
debts,  and  loaning  their  credit,  so  as  to  prevent  the  abuse  of 
such  powers,  as  required  by  the  constitution  of  Ohio,  and  to 
repeal  all  sections  of  the  Revised  Statutes  inconsistent  here- 
with, "  passed  October  22,  1902,  as  amended  April  21,  1904,  to 
the  owner  of  each  piece  of  property  abutting  upon  any  street, 
highway,  or  public  place,  the  grade  of  which  will  be  changed 
by  the  said  proposed  improvement ; 

[Claims  for  damages  and  judicial  inquiry  thereinto.]  and 
the  provisions  of  said  section  52  and  of  section  54  of  said  act, 
as  amended  April  21,  1904,  relating  to  the  manner  of  service 
of  notice,  the  filing  of  claims  for  damages,  and  the  effect  of 
failure  to  file  such  claims,  shall  apply  to  the  notice  herein  pro- 
vided and  to  all  claims  for  damages  by  reason  of  the  said  pro- 
posed improvement,  and  after  the  expiration  of  the  time  pro- 
vided by  said  section  54  of  said  act,  as  amended  April  21,  1904, 
for  the  filing  of  such  claims,  the  council,  board  of  legislation 
or  other  legislative  body  of  said  municipality,  when  claims 
have  been  filed  within  the  time  limited  by  said  section,  shall 
determine  by  ordinance  or  resolution  whether  said  claims  shall 
be  judicially  inquired  into,  as  hereinafter  provided,  before 
commencing,  or  after  the  completion,  of  the  said  proposed  im- 
provement; and,  thereupon,  the  mayor  or  solicitor  shall  make 
application  for  a  jury,  in  the  manner  provided  by  section  56 
of  said  act  and  by  section  2321,  Revised  Statutes,  to  the  court 
of  common  pleas,  or  to  the  probate  court,  of  the  county  in 
which  said  municipality,  or  the  larger  part  of  it,  is  situated, 
either  before  commencing,  or  after  the  completion  of  said  im- 
provement, as  the  said  council,  board  of  legislation,  or  other 
legislative  body  shall  determine,  and  all  proceedings  upon  such 
application  shall  be  governed  by  the  laws  relating  to  the  ap- 
plications provided  for  by  said  section  56  of  said  act  and  by 
said  section  2321,  Revised  Statutes. 

[Mode  and  time  of  payment  of  railroad  company's  propor- 
tion of  cost.]  And  the  council,  board  of  legislation,  or  other 
legislative  body  of  said  municipality,  may  by  ordinance  pre- 


GRADE  CROSSINGS.  694 

scribe  the  mode  and  time  or  times  of  payment  by  said  railroad 
company  or  companies  of  the  proportion  of  the  cost  of  said 
improvement  which  said  railroad  company  or  companies  shall 
be  required  to  pay.     [1906,  April  16,  98  v.  191;  95  v.  356.] 

[Sec.  4.]  [Height  of  viaducts.]  Any  way,  crossing  or  viaduct 
so  constructed  over  any  railroad  track  or  tracks  in  any  munici- 
pality shall  be  of  such  height  as  not  to  be  less  than  twenty-one 
feet  in  the  clear  from  the  top  surface  of  the  rails  of  the  rail- 
road track  to  the  lowest  point  or  projection  of  such  overhead 
way,  crossing  or  viaduct,  unless  such  company  shall  consent  to 
or  the  cirucit  court  order  a  less  height,  but  in  no  event 
shall  said  circuit  court  order  a  less  height  than  sixteen  feet 
and  three  inches. 

[Sec.  5.]  [How  necessary  land  acquired.]  The  land  or  prop- 
erty required  to  make  any  alterations  in  the  street  or  highway 
necessitated  by  the  proposed  improvement  shall  be  purchased 
or  appropriated  by  the  municipality  or  company  after  the 
manner  provided  by  law  for  the  appropriation  of  private  prop- 
erty for  public  use,  and  the  land  or  property  required  to  make 
any  alteration  in  the  railroad  or  railroads  necessitated  by  the 
proposed  improvement  shall  be  purchased  or  appropriated  by 
the  railroad  company  or  companies  after  the  manner  provided 
for  the  appropriation  of  private  property  by  such  corporation; 
but  the  municipality  shall  not  appropriate  land  held  or  owned 
by  any  railroad  company  necessary  for  the  use  of  such  rail- 
road company  in  maintaining  and  operating  its  road. 

[Sec.  6.]  [Cost  of  maintenance,  how  borne.]  After  the  com- 
pletion of  the  work  the  crossings  and  the  approaches  shall  be 
kept  in  repair  as  follows:  When  the  public  way  crosses  a 
railroad  by  an  overhead  bridge,  the  cost  of  maintenance  shall 
be  borne  by  the  municipality.  When  the  public  way  passes 
under  the  railroad  the  bridge  and  its  abutments  shall  be  kept 
and  maintained  by  the  railroad  company,  and  the  public  way 
and  its  approaches  shall  be  maintained  and  kept  in  repair  by 
the  municipality  in  which  they  are  situated. 

[Sec.  7.]  [Bond  issue  to  pay  city's  share  of  such  improvement; 
tax  levy.]  For  the  purpose  of  raising  the  money  to  pay  the 
proportion  of  the  cost  of  such  improvement  payable  by  the 
municipality,  the  bonds  of  the  municipality  may  be  issued  to 
the  necessary  amount,  which  bonds  shall  be  of  such  denomina- 
tion and  payable  at  such  place  and  times  as  the  council,  board 
of  legislation  or  other  legislative  body  may  determine,  and 
shall  bear  interest  not  exceeding  four  per  cent,  per  annum, 
and  shall  not  be  sold  for  less  than  their  par  value.  A  tax  on 
the  taxable  property  of  the  municipality  in  addition  to  all 
other  levies  now  allowed  by  law  may  be  levied  to  pay  the  prin- 
cipal and  interest  of  the  bonds  as  the  same  may  mature.     Af- 


695  THE   OHIO   MUNICIPAL    CODE. 

ter  the  completion  of  the  improvement  a  tax  in  addition  to 
all  other  levies  allowed  by  law  may  be  levied  by  the  munici- 
pality to  pay  the  cost  of  maintaining  and  keeping  in  repair  that 
part  of  the  work  required  to  be  maintained  and  kept  in  repair 
by  said  municipality. 

[Sec.  8.]  [Street  railway  companies  to  bear  share  of  expense  of 
making  such  improvements.]  In  case  the  track  or  tracks  of 
any  street  railway  company  or  companies  within  the  limits  of 
any  municipality  where  the  improvements  authorized  by  this 
act  are  made  shall  cross  at  grade  or  otherwise  a  public  street 
or  the  right  of  way  of  any  railroad  company  or  companies  at 
a  point  where,  under  the  plans  and  specifications  provided  for 
in  this  act,  it  has  been  determined  to  construct  the  said  im- 
provements, the  municipality  shall  have  power  by  ordinance 
to  require  such  street  railway  company  or  companies  to  bear 
a  fair  and  reasonable  proportion  of  the  cost  assumed  by  said 
municipality  in  the  making  of  said  improvement,  not  exceed- 
ing one-half  the  portion  payable  by  said  municipality ;  and  the 
municipality  shall  have  the  right  of  action  against  any  such 
street  railway  company  or  companies  for  such  proportion  of 
the  said  cost  as  said  ordinance  shall  require  said  company  or 
companies  to  bear,  and  such  proportion  of  said  cost  shall  be  a 
lien  upon  all  the  property,  both  real  and  personal,  of  the  said 
company  or  companies,  situated  in  the  county  in  which  the 
municipality  is  situated  from  and  after  the  date  of  the  passage 
of  said  ordinance ;  provided,  however,  that  said  street  railway 
company  or  companies  shall  keep  in  repair  at  its  or  their 
own  expense  all  tracks  affected  by  such  improvement  and  all 
construction  work  of  whatever  character  which  may  be  neces- 
sary to  support  such  tracks.  And  the  council,  board  of  legis- 
lation, or  other  legislative  body  of  said  municipality  may  by 
ordinance  provide  the  mode  and  time  or  times  of  payment  for 
the  proportion  of  the  cost  of  said  improvement  to  be  borne  by 
said  street  railway  company  or  companies.  [1906,  April  16, 
98  v.  192;  95  v.  356.] 

[Sec.  9.]  [Repeals.]  All  acts  and  parts  of  acts  in  conflict  or 
inconsistent  with  this\  act  are  hereby  repealed.  [1902,  May  2, 
95  v.  356.] 

3.     UNION  DEPOT  COMPANIES. 

Sec.  3446  R.  S.  [Who  may  file  articles  of  incorporation.]  The 
presidents  of  two  or  more  railroad  companies  running  railroads 
to  the  same  city,  town,  or  village,  may,  by  the  consent  and  un- 
der the  direction  of  their  respective  boards  of  directors,  file 
articles  of  incorporation  in  the  office  of  the  secretary  of  state, 
for  the  purpose  of  purchasing  depot  grounds,  and  locating, 
constructing,  and  maintaining  a  common  or  union  station  house 


CINCINNATI    SOUTHERN    RAILROAD.  696 

and  passenger  depot,  and  a  union  railroad  by  two  or  more 
tracks  connecting  the  railroads  of  such  companies  for  business 
purposes.1     [65  v.  63,  §  1;  S.  &  S.  122.] 

Control  of  depot  property. —  Terminal   railroad  companies 

Depot  company  may  grant  exclusive  authorized    under    general    railroad 

privilege   to   transfer    company   for  laws.     See   State   ex  rel.  v.   Union 

hack  stand.     State  ex  rel.  v.  Depot  Terminal  R.  R.  Co.,  72  O.  S.  455. 
Co.,  71  O.  S.  379. 

4.     RAILROADS  OWNED  BY  MUNICIPALITIES. 
The  Cincinnati  Southern  Railroad. 

1.  Act  authorizing  construction  and  bond  issue  of  $10,000,000;  trus- 
tees; appropriation  of  land,  etc.     66  O.  L.  80. 

Held  constitutional.  Walker  v.  Cincinnati,  1  C.  S.  C.  R.,  121;  ariirm- 
ed,  21  O.  S.  14.  But  s<-e  Ry.  Co.  v.  Martin,  53  O.  S.  386;  Taylor  v.  Com- 
missioners of  Ross  County,  23  O.  S.  22;  Wyscaver  v.  Atkinson,  37  O.  S. 

80;  Counterman  v.  Dullin  Tp.,  38  O.  S.  515. 
I 

2.  Act  authorizing  city  to  advance  funds  to  trustees.     67  O.  L.  28. 

This  act  was  also  involved  in  Walker  v.  Cincinnati,  21  O.  S.   14. 

3.  Act  relating  to  rights  of  bondholders  and  authorizing  trustees  to 
complete  and  lease  the  road.     70  O.  L.  139. 

4.  Act  authorizing  trustees  to  borrow  six  million  ($6,000,000)  dollars 
more  and  to  issue  bonds  therefor  upon  a  vote  of  the  people.     73  O.  L.  13. 

Upheld  in  Thorns  v.  Greenwood,  7  Am.  L.  Rec.  320%;  affirmed  by  the 
Supreme  Court  3  B.  157. 

5.  Act  authorizing  trustees  to  contract  for  completing  and  leasing 
the   road.     74   O.   L.    115. 

6.  Act  authorizing  trustees  to  borrow  two  million  ($2,000,000)  dol- 
lars more  upon  a  vote  of  the  people,  and  providing  for  terminal  facilities 
right  to  use  streets  and  lease  of  finished  parts  of  road.     75  O.  L.  115. 

The  vote  on  this  question  was  against  the  bond  issue,  and  thereupon 
the  succeeding  act  of  May  15,   1878  was  passed. 

7.  Act  authorizing  trustees  to  borrow  $2,000,000  more,  upon  a  vote 
of  the  people,  and  to  contract  to  complete  the  road.     75  O.  L.  559. 

In  a  suit  to  enjoin  the  performance  of  the  contract  made  in  pursuance 
of  the  above  act  and  to  enjoin  the  issuance  of  the  bonds  therein  author- 
ized, the  constitutionality  of  the  original  Southern  Railway  act  of  May 
4,  1869,  and  all  subsequent  acts  supplementary  thereto,  was  questioned. 
The  constitutionality  of  all  this  legislation  was  sustained  in  Thorns  v. 
Greenwood,  7  Am.  L.  Rec.  320y2  (affirmed  by  Supreme  Court  10  B.  1057). 
See  reference  to  this  affirmation  in  dissenting  opinion  of  Judge  Okey  in 
State  v.  Pugh,  43  O.  S.  at  page  139. 

8.  Act  authorizing  trustees  to  borrow  $300,000  more,  and  to  acquire 
land  for  terminal  facilities  without  submission  to  a  popular  vote.  77  O. 
L.    153. 


697  THE   OHIO   MUNICIPAL   CODE. 

9.  Act  requiring  the  Southern  Railway  trustees  to  give  new  bonds  and 
providing  for  the  renewal  of  bonds.     77  O.  L.  175. 

10.  Act  authorizing  trustees  to  lease  or  sell  the  Southern  Railroad, 
78  O.  L.  58. 

Repealed  April  23,   1898    (93  O.   L.   637). 

Under  this  act  a  lease  was  made  of  the  railway  for  twenty-five  years 
to  The  Cincinnati,  New  Orleans  &  Texas  Pacific  Railway  Company,  Oc- 
tober   11,    1881. 

Held  that  the  powers  of  the  trustees  did  not  cease  with  the  making  of 
a  lease.     Cincinnati  v.  Bishop  et  al.,  6  C.  C.  247    (affirmed  52  O.  S.  637). 

11.  Act  providing   for   compensation    of  trustees.     80    0.    L.    168. 

12.  Act  giving  power  to  fill  and  improve  lands  for  terminal  facili- 
ties.     82   O.    L.    143. 

13.  Act  amending  section  3  of  the  act  of  February  24,  1876  (73  O.  L. 
13)   as  to  actions  against  the  trustees.     83  0.  L.  38. 

14.  Act  authorizing  the  city  of  Cincinnati  to  adjust  claims  growing 
out   of  construction  of   Southern  Railway.     83    O.   L.    152. 

15.  Act  authorizing  sale  of  The  Southern  Railway  upon  resolution  of 
council  and  vote  of  the  people.    84  O.  L.  82. 

In  a  suit  brought  to  enjoin  the  proposed  sale,  the  petition  was  dismissed 
on  demurrer,  and  the  judgment  affirmed  by  the  Supreme  Court.  Cincin- 
nati v.  Dexter,  55  O.  S.  93. 

The  vote  on  the  question  was  against  said  proposed  sale. 

This  act  was  repealed  April  23,  1898    (93  O.  L.  637). 

16.  Act  authorizing  the  railway  trustees  to  extend  lease  of  Southern 
Road  and  authorizing  Sinking  Fund  Trustees  to  extend  outstanding 
bonds.     86    O.    L.    67. 

No  action  was  taken  under  this  law,  and  it  was  repealed  April  25,  1898 
(93    0.    L.    672). 

17.  Act  authorizing  modification  and  extension  of  Southern  Railway 
lease  conditioned  on  a  vote  of  the  people;  also  authorizing  trustees  to 
borrow  $2,500,000  for  terminal  facilities.     93  O.  L.  637. 

.  Held  constitutional  and  the  action  of  the  boards  thereunder  found  to 
be  in  all  respects  regular  and  legal.  Cincinnati  v.  Ferguson  et  al.,  12  Dec. 
439  j  affirmed  by  Supreme  Court  47  B.  220,  66  O.  S.  658. 

Held  that  bonds  for  terminal  facilities  and  permanent  betterments  pro- 
vided for  in  section  2  of  this  act  could  be  issued  only  after  execution  of 
the  supplemental  agreement  provided  for  in  section  3  and  a  favorable 
vote  of  the  people  required  in  section  4.  Cincinnati  v.  Ferguson  et  al., 
8  N.  P.  361;   affirmed  by  Supreme  Court  without  report,  45  B.  443. 

Held  action  of  board  in  relocating  terminals  and  modifying  plan  as  to 
amount  of  property,  regular  and  valid.  Cincinnati  v.  Trustees,  1  N.  P. 
(N.  S.)  361;  14  Dec.  466,  (aff'd  Supreme  Ct.,  49  B.  220). 

18.  Act  providing  that  net  earnings  of  the  road  shall  be  paid  into  the 
city  treasury,  and  in  case  of  sale,  purchase  money  shall  be  paid  into  city 
treasury  to  the  credit  of  the  Sinking  Fund  and  applied  to  the  reduc- 
tion of  the  bonded  debt,  etc.     93  O.  L-  647. 


CINCINNATI     SOUTHERN    RAILROAD.  697a 

19.  Act  authorizing  Southern  Railway  trustees  to  extend  outstanding 
bonds.     93   O.  L.   672. 

In  Cincinnati  v.  Guckenberger,  60  O.  S.  353,  it  was  held  that  the  Sink- 
ing Fund  Trustees  had  not  power  without  advertising  and  public  bid- 
ding, to  make  a  contract  with  Roberts  &  Company  providing  for  the  sale 
of  city  bonds  to  raise  money  with  which  to  refund  the  bonded  Southern 
Railway  debt;  and  whether  the  above  act  of  April  25,  1898,  gave  the  power 
to  extend  the  time  of  payment  of  Southern  Railway  bonds  solely  to  the 
Southern  Railway  trustees  or  the  Sinking  Fund  Trustees  to  be  exercised 
by  either,  was  not  decided.  For  other  decisions  affecting  Cincinnati 
Southern  Railroad,  see  Felton  v.  City,  95  Fed.,  336;  Roberts  and  Co.  v. 
Taft,  109  Fed.  825;  Thomas  v.  C,  N.  O.  &  T.  P.  Ry.  Co.,  U.  S.  Cir.  Ct.,  S. 
D.  Ohio,  W.  D ,  No.  4598. 

Other  Acts  Authorizing  Municipalities  to  Construct  Railways. 

For  other  acts  authorizing  railroads  to  be  constructed  by  municipali- 
ties, see,  as  to  Toledo,  66  O.  L.  83;  75  O.  L.  113;  Zanesville,  66  O.  L.  11; 
Mt.  Gilead,  75  O.  L.  110;  77  O.  L.  91;  78  0.  L.  45;  93  O.  L.  679;  Hills- 
boro,  76  O.  L.  65;  79  O.  L.  82;  Georgetown,  76  O.  L.  138;  88  O.  L.  141; 
Ripley,  76  O.  L.  149;  St.  Clairsville,  76  O.  L.  180;  Norwalk,  89  O.  L.  323; 
Pomeroy,  87  O.  L.  110;  89  O.  L.  308;  90  L.  L.  356;  94  O.  L.  648;  Salem, 
88  O.  L.  593  (held  unconstitutional  in  Ry.  Co.  v.  Martin,  53  O.  S.  386). 


698 


THE    OniO    MUNICIPAL    CODE. 


STREET    RAILWAYS  IN    MUNICIPAL 
LIMITS.1 


Sec.  2503  R.  S.  [Grade  of  streets  when  street  railroad  is  con- 
structed.] Before  any  street  railroad  shall  be  constructed, 
on  any  street  less  than  sixty  feet  in  width,  with  a  roadway  of 
thirty-five  feet,  or  under,  the  council  shall  provide,  that  the 
crown  of  the  street  shall  be  made  a  nearly  flat  uniform  curve, 
from  curb  to  curb,  without  ditch  gutters,  and  in  such  manner 
as  to  give  all  wheeled  vehicles  the  full  use  of  the  roadway  up  to 
the  face  of  the  curb,  after  the  plan  of  the  streets  in  the  cities 
of  Philadelphia  and  New  York.  And  on  any  street,  when- 
ever the  tracks  of  two  street  railroads,  or  of  a  street  railroad 
and  a  steam  railroad,  cross  each  other  at  a  convenient  grade, 
the  crossings  shall  be  made  with  crossing-frogs  of  the  most 
approved  pattern  and  materials  and  kept  up  and  in  repair  at 
the  joint  expense  of  the  companies  owning  said  tracks.2  [1881, 
April  20;  78  v.  296;  Rev.  Stat.  1880;  66  v.  217,  §  413;  (S. 
&  S.  139).] 


( 1 )  Sections  on  street  railways 
in  municipalities. —  §§  2503  to 
2505e  R.  S.  carried  here  formed 
part  of  subdivision  2,  Chap.  5,  Div. 
8,  Title  XII.,  R.  S.  §  2501  will  be 
found  under  §  29  of  the  Code,  page 
146.  §  2502  R.  S.  repealed,  is  su- 
perseded by  §  30  of  the  Code  (see  § 
30,  page  149). 

Section  3437  R.  S.,  relating  to 
construction  of  street  railways  gen- 
erally, is  referred  to  in  §  29  of  the 
Code,  and  will  be  found  on  page 
142.  §  3438  R.  S.,  repealed,  is 
superseded  by  §  29  of  the  Code 
(see  §  29,  page  144). 

For  forms  relating  to  street  rail- 
way grants  see  notes  pages  142  to 
156  inclusive.     Municipal  power   to 


regulate  speed  of  street  cars,  see 
paragraph  9,  §  7  of  the  Code.  Mu- 
nicipal power  to  require  conductors 
on  street  cars,  see  paragraph  28, 
§   7  of  the  Code. 

(2)  Validity.-  -  This  section  is 
valid  and  applies  whether  lines 
were  constructed  before  or  after  the 
passage  of  the  act.  Cin.  St.  Ry. 
Co.  v.  C.  H.  &  D.  R.  R.,  32  B.  4. 

Frogs  at  crossings. —  One  com- 
pliance with  this  section  is  not 
enough,  if  a  new  frog,  found  to  be 
better,  is  required.  Cin.  St.  Ry. 
Co.  v.  C.  H.  &  D.  R.  R.,  32  B.  4. 

Street  railroads  crossing  steam 
railroads  need  not  provide  inter- 
locking devices  as  required  by  § 
247f    R.    S.     The    requirements    in 


STREET    RAILWAYS    IN    MUNICIPAL    LIMITS.  699 

case   of  crossing   of   street  railway  Ry.  v.  C.  H.  &  I.  R.  R.  Co.,  21   C. 

and   steam   railroad   are  only  those  C.    391. 

in  §   2503  R.  S.  and  §§    (3443—5)  See  §§    (3443—5)   and   (3443—7) 

and    (3443—7)    R.   S.    C.  &  H.   St.  R.  S.  infra. 

Sec.  2504  R.  S.  [Pavement  of  streets  where  railroads  are  con- 
structed, proviso.]  The  council  may  require  any  part  or  all  of 
the  track,  between  the  rails  of  any  street  railroad  constructed 
within  the  corporate  limits,  to  be  paved  with  stone,  gravel, 
boulders,  or  the  Nicholson  or  other  wooden  or  asphaltic  pave- 
ment, as  may  be  deemed  proper,  but  without  the  corporate 
limits,  paving  between  the  rails  with  stone,  boulders,  or  the 
Nicholson  or  other  wooden  or  asphaltic  pavement  shall  not 
be  required;  provided,  that  in  cities  of  the  second  grade 
of  the  first  class,  the  council  may  require  of  any  street  rail- 
road company  to  pave  and  keep  in  constant  repair,  sixteen 
feet  for  a  double  track  or  seven  feet  for  a  single  track, 
all  of  which  pavement  shall  be  of  the  same  material  as  the 
balance  of  the  street  is  paved  with.1  [87  v.  246;  66  v.  217, 
§  414;  (S.  &S.  139).] 

(1)  Recovery  on  default  of  rails  at  request  of  the  company, 
pavement. —  Where  city  ordinance  may  levy  a  tax  on  railroad  to  col- 
requires  it,  a  city  may,  on  default  lect  for  its  share  of  the  work. 
of  company,  improve  the  street  be-  Cleveland  v.  Cleveland  &  Newburgh 
tween  tracks  and  recover  the  cost  R.  R.,  1  Clev.  304. 
in  an  action  against  the  company.  Validity  of  requirement. —  See 
Columbus  v.  Railroad,  45  O.  S.  98.  Cleveland  v.  Cleveland  R.  R.  Co.,  1 

A    city     having    paved     between  N.  P.  413,  reversed;  60  O.  S.  586. 

Sec.  2505  R.  S.  [Council  of  city  or  village  may  grant  extension 
of  street  railroad.]  The  council  of  any  city  or  village  may 
grant  permission,  by  ordinance,  to  any  corporation,  individual, 
or  company  owning,  or  having  the  right  to  construct,  any  street 
railroad,  to  extend  their  track,  subject  to  the  provisions  of 
sections  three  thousand  four  hundred  and  thirty-seven,  three 
thousand  four  hundred  and  thirty-eight,  three  thousand  four 
hundred  and  thirty-nine,  three  thousand  four  hundred  and 
forty,  three  thousand  four  hundred  and  forty-one,  three  thou- 
sand four  hundred  and  forty-two,  and  three  thousand  four  hun- 
dred and  forty-three,1  on  any  street  or  streets  where  council 
may  deem  such  extension  beneficial  to  the  public;  and  when 
any  such  extension  is  made,  the  charge  for  carrying  passen- 
gers on  any  street  railroad  so  extended,  and  its  connections 
made  with  any  other  road  or  roads,  by  consolidation  under  ex- 


700  THE    OHIO    MUNICIPAL    CODE. 

isting  laws,  shall  not  be  increased  by  reason  of  such  extension 
or  consolidation.2  [1880,  March  9 :  77  v.  42,  43;  Kev.  Stet 
1880;  66  v.  140.] 

(1)   Of   the   sections    referred    to  (2)    Extension.  —  For     matters 

here,   §    3437  is  mentioned  in  §   29  relating  to  grants  of  extensions  to 

of  the  Code;   §  3438  is  repealed  by  street  railways,   see  notes   under    8 

the  Code  and  superseded  by  §  29  of  29  of  the  Code,  p.  145. 
the  Code.     The  others  will  be  found 
infra. 

Sec.  2505a  R.  S.  [Power  to  lease  or  purchase,  to  enter  into  ben- 
eficial arrangement,  to  purchase  stock,  etc.;  perfection  of  lease  or 
purchase ;  rights  of  dissenting  stockholder ;  increase  of  fare  pro- 
hibited.] Any  corporation  or  company  organized  for  street 
railway  purposes,  may  lease  or  purchase  any  street  railroad,  or 
street  railroads,  or  railroad  operated  as  a  street  railroad  and  by 
electric  power  or  inclined  plane  railroad  or  railroads,  together 
with  all  the  property,  real,  personal  or  mixed,  and  all  the  fran- 
chises, rights  and  privileges  respecting  the  use  and  operation  of 
such  railroad  or  railroads,  situate  or  existing  in  whole  or  in  part 
within  this  state,  constructed  and  held  by  any  other  corpora- 
tion or  company,  corporations  or  companies,  the  latter  being 
hereby  invested  with  corresponding  power  to  let  or  sell  upon 
such  terms  and  conditions  as  may  be  agreed  upon  between  the 
corporations  or  companies ;  and  any  two  or  more  of  such  corpo- 
rations or  companies  may  enter  into  any  agreement  for  their 
common  benefit  consistent  with  and  calculated  to  promote  the 
objects  for  which  they  were  created.  ~No  such  lease  or  pur- 
chase shall  be  perfected  until  a  meeting  of  the  stockholders  of 
each  of  the  companies  has  been  called  for  that  purpose  by  the 
directors  thereof,  on  thirty  days'  notice  to  each  stockholder,  at 
such  place,  and  in  such  manner,  as  is  provided  for  annual 
meetings  of  the  companies,  and  the  holders  of  at  least  two- 
thirds  of  the  stock  of  each  company,  in  person  or  by  proxy,  at 
such  meeting,  or  at  any  properly  adjourned  meeting,  assent 
thereto.  Provided  that  any  stockholder  who  refuses  to  assent 
to  such  lease  or  sale  and  signifies  the  same  by  notice  in  writing 
to  the  lessee  or  purchaser  within  ninety  days  thereafter,  shall 
be  entitled  to  demand  and  receive  compensation  in  the  manner 
provided  for  the  compensation  of  stockholders  in  sections  3302, 
3303  and  3304  of  the  Eevised  Statutes,  and  the  said  sections 
are  adopted  and  made  to  be  a  part  of  this  section.  Provided, 
that  whenever  any  such  lease  or  purchase  is  made  as  herein 
provided,  there  shall  be  no  increase  of  the  existing  rates  of 
fare  by  reason  of  such  lease  or  purchase  nor  shall  any  fare  be 


STREET    RAILWAYS    IN    MUNICIPAL    LIMITS.  701 

charged  upon  any  of  the  separate  routes  so  leased  or  purchased  in 
excess  of  the  fare  charged  over  such  separate  routes  prior  to  the 
lease  or  purchase  thereof,  and  provided  that  when  any  such  lease 
or  purchase  is  made  as  herein  provided,  the  fare  charged  for  one 
continuous  route  or  ride  in  the  same  general  direction  over  all 
such  leased  or  purchased  lines  within  any  municipal  corporation 
shall  not  exceed  the  maximum  fare  charged  over  any  one  of  said 
lines  prior  to  such  lease  or  purchase.1  [93  v.  214;  92  v.  277; 
88  v.  193.] 

(1)     Remedy    for    violation    of     v.  Ry.  Co.,   23  C.  C.  603;   3  C.  C. 

this   section  by   charging  unauthor-      (N.  S.)    285. 
ized  fares  is  by  quo  warranto.  State 

Sec.  2505b  R.  S.  [Consolidation  of  street  railway  companies, 
proviso.]  x  Whenever  the  lines  or  authorized  lines  of  road  of 
any  street  railroad  corporation  or  companies  meet  or  intersect, 
or  can  be  conveniently  operated  from  one  power  house  or  from 
a  power  house  or  power  houses  owned,  under  lease  or  operated 
by  *one  of  such  street  railroad  corporations  or  companies,  or 
whenever  any  such  line  of  any  street  railroad  corporation  or 
company,  and  that  of  any  inclined  plane  railway  or  railroad 
company  or  corporation,  or  any  railroad  operated  by  electricity 
may  be  conveniently  connected,  to  be  operated  to  mutual  ad- 
vantage, or  whenever  any  such  line  of  any  street  railroad  cor- 
poration or  company  and  that  of  any  inclined  plane  railway  or 
railroad  company  or  corporation  or  the  railway  of  any  com- 
pany operated  by  electricity  can  be  conveniently  operated  from 
one  power  house  or  from  a  power  house  owned,  under  lease 
or  operated  by  one  of  such  street  railroad  corporations  or  com- 
panies or  inclined  plane  railway  or  railroad  companies  or  cor- 
porations or  by  any  company  or  corporation,  the  railway  of 
which  is  operated  by  electricity  such  corporations  or  companies, 
or  any  two  or  more  of  them,  are  hereby  authorized  to  consoli- 
date themselves  into  a  single  corporation,  provided  they  are 
not  competing  lines,  but  the  provisions  herein  as  to  competing 
lines  shall  have  no  application  to  such  companies  or  corpora- 
tions whose  lines  are  nearby  or  wholly  situate  in  any  city  of 
the  state  of  Ohio  or  whenever  a  line  of  road  of  any  street  rail- 
road company  or  corporation  organized  in  this  state  is  made, 
or  is  in  process  of  construction  to  the  boundary  line  of  the 
state,  or  to  any  point  either  within  or  without  the  state,  such 
corporation  or  company  may  consolidate  its  capital  stock  with 
the  capital  stock  of  any  corporation  or  company,  or  corpora- 
tions and  companies  in  an  adjoining  state,  the  line  or  lines  of 
whose  road  or  roads  have  been  made  or  are  in  process  of  con- 
siruction  to  the  same  point  or  points,  in  the  same  manner  and 


702  THE    OHIO    MUNICIPAL    CODE. 

with  the  same  effect  as  provided  for  the  consolidation  of  rail- 
road companies  in  sections  3381,  3382,  3383,  3384,  3385, 
3386,  3387,  3388,  3389,  3390,  3391,  and  3392  of  the  Kevised 
Statutes,  and  any  and  all  acts  amendatory  and  supplementary 
to  said  sections  and  each  of  them ;  and  the  said  sections,  includ- 
ing these  so  amended  and  supplemented  are  adopted  and  made 
a  part  of  this  section.2  [May  10,  1902,  95  v.  510 ;  92  v.  277 ; 
89  v.  406;  88  v.  493.] 

(1)  This  section  is  given  as  company  is  liable  for  torts  of  orig- 
amended  May  10,  1902.  inal  companies,  and  after  a  verdict 

(2)  Relation  of  consolidated  to  against  one  of  the  constituent  corn- 
constituent  companies. — A  consol-  panies,  pleadings  may  be  amended  to 
idated  corporation  holds  property  aver  the  consolidation.  Cin.  St.  Ry. 
in  its  own  right,  and  not  in  trust  Co.  v.  Fullbright,  7  B.  187. 

for      the      constituent      companies.  Delivery    of   new   stock    should 

Greene  v.  Woodland  Ave.,  etc.,   St.  be  to   stockholders  and  not  to  offi- 

R.  R.  Co.  et  al.,  62  O.  S.  67.  cers  of  original  companies.     Robin- 

But  a  consolidated  company  holds  son  v.  Cleveland  St.  Hy.  Co.,  5  N.  P. 

its   stock  in  trust  for  members   of  293,  301. 

the    constituent    companies.    Fuller  Status   of    constituent    compa- 

v.  Railway,  8  IT.  P.  605.  nies. —  On     consolidation     the     old 

Rights  of  pledgee  of  stock  of  old  companies  became  extinct  except  for 

company,    see    Cleveland    City    Ry.  certain  limited  purposes.     Cleveland 

Co.  v.  First  Nat.  Bk.,  68  O.  S.  582.  City  Ry.  Co.  v.  First  Nat.  Bank,  22 

Terms    of    consolidation    which  C.  C.   165    (rev.  other  grounds,  68 

may  be  prescribed,  see  lb.  O.  S.  582). 

Liability  for  tort. —  Consolidated 

[Sec.  2505b — 1.]  [Consolidation  of  electric  railroad  or  street 
railroad  companies.]  (§2.)  When  the  lines  of  a  road  of  any 
street  railroad  company  or  railroad  company,  organized  under 
the  laws  of  this  state,  are  constructed  or  in  process  of  construc- 
tion, and  are  or  will  be  operated  by  electricity,  and  connect,  or 
will  or  can  be  made  to  connect  with  the  lines  of  another  street 
railroad  company  or  railroad  company,  formed  by  the  con- 
solidation of  companies  organized  under  the  laws  of  this  state, 
or  by  the  consolidation  of  a  company  organized  under  the  laws 
of  this  state  and  a  company  organized  under  the  laws  of  an 
adjoining  state,  whose  lines  of  road  are  constructed  or  in  pro- 
cess of  construction,  and  are  or  will  be  operated  by  electricity, 
so  that  cars  may  pass  over  such  lines  of  roads  continuously, 
without  break  or  interruption,  such  street  railroad  or  railroad 
company   and    such    consolidated   street    railroad   company   or 


STREET    RAILWAYS    IN    MUNICIPAL    STREETS.  702a 

railroad  eompany,  may  consolidate  themselves  into  a  single 
company  in  the  same  manner  and  with  like  effect  as  is  pro- 
vided for  the  consolidation  of  railroad  companies  in  sections 
3380a,  3381,  3382,  3383,  3384,  3385,  3386,  3387,  3388,  3390, 
3391  and  3392  of  the  Kevised  Statutes  of  Ohio,  and  any  and 
all  acts  amendatory  and  supplementary  to  said  sections  and 
each  of  them,  all  of  which  are  adopted  and  made  a  part  of  this 
act;  provided,  however,  that  companies  owning  and  operating 
competing  lines  of  road  shall  not  consolidate  under  this  act, 
hut  the  provisions  herein  as  to  companies  owning  competing 
lines  of  road,  shall  not  apply  to  companies  whose  lines  of  road 
are  nearly  or  wholly  situate  in  any  municipal  corporation  of 
this  state.      [97  v.  570.] 

Sec.  2505c  R.  S.  [Use  of  street  railway  tracks  for  operation  of 
passenger  cars  of  other  railway  company,  etc.]  Whenever  any 
railway  company  is  incorporated  and  organized  under  the  laws 
of  this  state  for  the  purpose  of  building,  acquiring,  owning, 
leasing,  operating  and  maintaining  a  railroad  or  railroads  to 
be  operated  by  electricity  or  other  motive  power  from  one  mu- 
nicipal corporation  or  point  in  this  state,  to  any  other  munici- 
pal corporation,  municipal  corporations,  or  point  in  this  state, 
it  shall  have  an  authority  to  make  an  arrangement  or 
agreement  with  any  street  railway  company  or  companies 
owning  or  operating  any  street  railway  or  railways  in  any 
such  municipal  corporation  or  corporations,  and  said  street 
railway  company  or  companies  shall  have  authority  to  make 
and  enter  into  such  arrangement  or  agreement  with  said 
railway  company,  whereby  the  passenger  cars  of  such  railway 
company  may  be  run  and  propelled  over  and  along  the  track 
or  tracks  of  such  street  railway  company  or  companies,  for  such 
compensation  and  upon  such  terms  as  may  be  agreed  upon  in 
the  same  manner,  upon  the  same  conditions  and  for  the  same 
length  of  time  as  the  cars  owned  or  operated  by  said  street  rail- 
way company  or  companies  are  operated  in  such  municipal 
corporation  or  corporations.  The  said  cars  of  said  railway 
company  shall,  while  they  are  running  and  being  operated  over 
and  along  the  track  or  tracks  of  such  street  railway  company 
or  companies  in  any  such  municipal  corporation,  be  entitled  to 
all  the  privileges  and  subject  to  all  the  obligations  enjoyed  and 
imposed  by  and  upon  the  cars  of  such  street  railway  company 
or  companies  owning  or  operating  its  cars  in  any  such  munici- 
pal corporation,  and  shall  be  operated  only  by  the  same  motive 


703  THE    OHIO    MUNICIPAL    CODE. 

power  with  which  the  cars  of  such  street  railway  company  or 
companies  are  or  may  be  operated.  Such  arrangement  and 
agreement,  when  authorized  by  not  less  than  two-thirds  in 
amount  of  the  stockholders  of  each  company  proposing  to  enter 
into  such  arrangement  and  agreement,  ratified  by  a  majority 
of  the  directors  and  executed  by  the  proper  officers  thereof, 
shall  give  to  such  railway  company  full  authority  to  operate  its 
said  cars  on  the  tracks  of  said  street  railway  company  or  com- 
panies in  such  municipal  corporation  or  municipal  corporations. 
Provided  that  it  shall  not  be  necessary  for  such  railway  com- 
pany, in  case  it  uses  in  any  such  municipal  corporation  or  mu- 
nicipal corporations,  only  the  tracks  of  a  street  railway  com- 
pany or  companies  owning  or  operating  a  street  railway  or 
railways  within  such  municipal  corporation  or  municipal  cor- 
porations to  obtain  any  additional  grant,  franchise  or  right, 
except  by  said  arrangement  or  agreement  with  said  street  rail- 
way company  or  companies.  Provided  further,  that  the  fare 
charged  by  said  railway  company  for  transporting  passengers 
within  the  municipal  corporation  or  municipal  corporations, 
shall  not  be  greater  than  that  fixed  in  the  franchise  or  fran- 
chises held  or  owned  by  such  street  railway  company  or  com- 
panies; and  where  there  is  a  public  park  or  cemetery  on  the 
line  of  such  railway  and  within  one  mile  of,  and  owned  by, 
such  municipal  corporation,  such  company  shall  for  such  fare 
so  transport  passengers  to  and  from  said  park  or  cemetery  the 
same  as  though  either  was  within  the  limits  of  such  corpora- 
tion.1     [91  v.  379.] 

(1)   Agreement       with       third  plain     when     one    company,     with 

company. —  When  one  company  has  tracks  already  laid,  grants  to  a  sec- 

by      proper     proceedings      obtained  ond  company  the  use  of  its  tracks, 

right  of  way  over  tracks  of  another  Sanfleet   v.   Toledo  et  al.,   10  C.  C. 

sompany,  it  cannot  recover  compen-  460. 

sation      from      a      third      company  Construction. —  §§       2505       and 

granted  a   right  of   way  from  first  2505c    were    held    not    to    conflict, 

company.     Toledo  Elec.  St.  Ky.  Co.  State  v.  Dayton  Traction  Co.  et  al., 

v.  T.  &  M.  V.  Ry.,  10  C.  C.  168.  18  C.  C.  490,  497. 

Abutting    owner    cannot    com= 

Sec.  2505e  R.  S.  [Street  or  electric  railway  may  lease  or  pur- 
chase property,  etc.,  of  electric  or  gas  light,  heat,  power  or  fuel 
company;  stockholders'  meeting  to  perfect  lease  or  purchase;  dis- 
senting stockholders ;  lease  or  sale  shall  not  affect  liability  of  com- 
pany selling.]  *      Any  corporation  or  company  maintaining  and 


STREET    RAILWAYS    IN    MUNICIPAL    STREETS.  704 

operating  a  street  railroad,  or  a  railroad  operated  by  electricity, 
may  lease  or  purchase  all  the  property,  real,  personal  and 
mixed,  and  all  the  franchises,  rights  and  privileges  of  any 
company  organized  for  the  purpose  of  supplying  electricity,  or 
natural  or  artificial  gas,  or  both  electricity  and  natural  or  ar- 
tificial gas,  for  power,  light,  heat  or  fuel  purposes,  or  which 
has  been  engaged  in  such  business  in  whole  or  in  part  in  any 
municipality  within  this  state,  the  latter  being  hereby  vested 
with  corresponding  power  to  let  or  sell,  upon  such  terms  and 
conditions  as  may  be  agreed  upon  between  the  corporation  and 
company.  No  such  lease  or  purchase  shall  be  perfected  until 
a  meeting  of  the  stockholders  of  each  of  the  companies  has  been 
called  for  that  purpose  by  the  directors  thereof,  on  thirty  (30) 
days'  notice  to  each  stockholder  at  such  time  and  place  and  in 
such  manner  as  is  provided  for  the  annual  meetings  of  the 
companies  and  the  holders  of  at  least  two-thirds  of  the  stock 
of  each  company  in  person  or  by  proxy,  at  such  meeting,  or  at 
any  properly  adjourned  meeting  assent  thereto.  Provided, 
that  any  stockholder  who  refuses  to  assent  to  such  lease  or  sale 
and  so  signifies  by  notice  in  writing  to  the  lessee  or  purchaser 
within  ninety  (90)  days  thereafter  shall  be  entitled  to  demand 
and  receive  compensation  in  the  manner  provided  for  the  com- 
pensation of  stockholders  in  sections  3302,  3303  and  3304  of 
the  "Revised  Statutes  and  the  said  sections  are  adopted  and 
made  a  part  of  this  section.  Any  such  company  so  leasing  or 
purchasing  the  property,  rights  and  franchises  of  an  electric 
light  and  power  company,  or  natural  or  artificial  »;as  company, 
or  electric  light  and  power  and  natural  or  artificial  £as  com- 
pany, shall  have  all  the  rights,  power  and  authority  of  the  com- 
pany where  property  rights  and  franchises  are  so  leased  or 
purchased,  but  the  liability  of  an  electric  light  and  power  com- 
pany, or  natural  or  artificial  gas  company,  or  electric  light  and 
power  and  natural  or  artificial  gas  company,  shall  in  no  man- 
ner be  affected  by  its  lease  or  sale  as  herein  provided.  [1902, 
May  6,  95  v.  390;  93  v.  139.] 

(1)  This  section  is  given  as  It  was  held  constitutional  in  Cin. 
amended  May  6,  1902.  St.    Railway   Co.   v.   Horstman,    72 

§  2505d  was  repealed  93  O.  L.  3.  .     O.  S.  93. 

Sec.  3439  R.  S.  [Written  consent  of  owners  of  more  than  one- 
half  of  feet  front  necessary.]1  No  such  grant2  shall  be  made 
until  there  is  produced  to  council,  or  the  commissioners,  as  the 


705  THE    OHIO    MUNICIPAL    CODE. 

ease  may  be,  the  written  consent  of  the  owners  of  more  than 
one-half  of  the  feet  front  of  the  lots  and  lands  abutting  on  the 
street  or  public  way,  along  which  it  is  proposed  to  construct 
such  railway  or  extension  thereof;3  and  the  provisions  of  sec- 
tions two  thousand  five  hundred  and  one  and  of  two  thousand 
five  hundred  and  three  to  two  thousand  five  hundred  and  five, 
inclusive,4  so  far  as  they  are  applicable,  shall  be  observed  in  all 
respects,  whether  the  railway  proposed  is  an  extension  of  an 
old  or  the  granting  of  a  new  route  ;5  provided,  that  this  act  shall 
not  apply  to  any  county  containing  a  city  of  the  second  grade 
of  the  second  class.6  [1883,  April  18,  80  v.  173,  175 ;  Kev. 
Stat.  1880;  65  v.  112,  §  3;  (S.  &  S.  139.)] 

(1)  See  note  (1)  under  §  2503  ble.  No  notice,  as  required  by  § 
R.  S.,  supra.  2502  R.  S.  (Code  §  30)  is  necessary. 

(2)  Grant  referred  to  is  grant  C.  C.  C.  &  St.  L.  Ry.  Co.  v.  U.  B. 
of    right    to    construct    or    extend  &  N.  Ry.  Co.,  26  C.  C.  180. 

street  railway,  as  formerly  provided  ( 6 )    Constitutionality.  —  This 

in  §  3438  R.  S.,  now  superseded  by  lust  proviso  excepting  Montgomery 

§   29  of  the  Code,  which  see,  pagfe  County   is   invalid,   being   a   special 

144.  act,  and  makes  the  whole  section  as 

(3)  Consents. —  See  note  (4)  amended  with  this  proviso  .invalid 
under  §  30  of  the  Code   (page  151).  and  leaves  the  preceding  law,  which 

(4)  Sections  referred  to. —  For  was  the  section  as  contained  in  R.  S. 
§  2501,  see  page  146.  §§  2503  to  of  1880,  in  force.  C.  C.  C.  &  St.  L. 
2505  are  carried,  supra.  Ry.  Co.  v.  U.  B.  &  N.  Ry.  Co.,  26 

(5)  Extensions  — In  case  of  ex-  C.  C.  (aff'd  73  O.  S.  364). 
tensions  only  §  2505  R.  S.  is  applica- 

Sec.  3439a.  [Time  after  which  abutting  property  owner  can 
not  withdraw  consent  for  construction.]  Nothing  contained  in 
sections  2502  and  3439  shall  permit  any  persons  owning  prop- 
erty abutting  on  any  street  along,  in  or  over  which  a  street  rail- 
road is  about  to  be  constructed,  to  withdraw  his  or  their  consent 
after  an  ordinance  granting  the  right  to  construct  and  operate 
a  street  railroad  shall  have  been  read  the  second  time ;  pro- 
vided, a  period  of  at  least  thirty  days  has  elapsed  since  the 
first  reading  of  said  ordinance  in  the  council  or  other  body 
authorized  to  make  the  grant.  And  where  an  abutting  prop- 
erty holder  has  been  heretofore  compensated  for  his  consent, 
or  has  heretofore  withdrawn  his  consent,  notwithstanding 
thirty  days  has  not  elapsed  since  the  first  reading  of  the  ordi- 
nance after  an  ordinance  granting  the  right  to  construct  and 
operate  a  street  railroad  has  been  read  the  second  time  in  the 


STREET    RAILWAYS    IN    MUNICIPAL    STREETS.  706 

council  or  other  body  authorized  to  make  the  grant  and  a  grant 
has  been  made  by  the  council  or  other  public  body  to  a  com- 
pany or  individual,  pursuant  to  such  consents,  the  grant  shall 
not  be  held  invalid  by  reason  thereof.1  [1902,  May  10,  95  v. 
475.] 

( 1 )  Validity. —  Section  held  con- 
stitutional in  Hume  v.  Traction  Co., 
13  Dec.   70. 

Sec.  3440  R.  S.  [When  property  may  be  appropriated  for  such 
railways;  Toledo;  Cuyahoga  county.]  When  the  council  or  com- 
missioners make  such  grant,  the  company  or  person  to  whom  the 
grant  is  made  may  appropriate  any  property  necessary  therefor 
when  the  owner  fails  to  expressly  waive  his  claim  to  damages 
by  reason  of  the  construction  and  operation  of  the  railway ; 
and  in  any  city  of  the  third  grade  of  the  first  class  any  person, 
persons  or  company  which  is  authorized  to  construct  and  op- 
erate and  has  constructed  and  is  operating  a  street  railway, 
may  appropriate  any  property  necessary  for  the  purpose  of  oc- 
cupying and  using  under  section  343 81  any  existing  street  rail- 
way track  or  tracks,  subject  to  the  limitations  of  said  section, 
and  for  not  more  than  one-eighth  of  the  entire  distance  between 
the  termini  of  the  route  as  actually  constructed,  operated  and 
run  over,  of  the  appropriating  company  or  person  at  the  time 
appropriation  proceedings  are  begun,  such  appropriation  to  be 
made  in  the  mode  and  manner  provided  for  the  appropriation 
of  property  in  part  third,  title  2,  chapter  8,  of  the  Revised 
Statutes ;  and  in  counties  containing  a  city  of  the  second  grade 
of  the  first  class  the  power  to  appropriate  may  be  exercised,  as 
hereinbefore  provided,  for  the  purpose  of  constructing  a  street 
railway  along  a  highway  occupied  by  a  turnpike  or  plank  road 
company  when  the  person,  persons  or  company  authorized  to 
construct  such  street  railway  can  not  agree  with  such  turnpike 
or  plank  road  company  upon  the  terms  and  conditions  upon 
which  such  highway  may  be  occupied,  and  when  such  appro- 
priation will  not  unnecessarily  interfere  with  the  reasonable 
use  of  such  highway  by  such  turnpike  or  plank  road  company ; 
provided,  nothing  herein  contained  shall  affect  the  rights  of 
property  owners  to  give  or  withhold  their  consent  concerning 
the  right  of  way  for  street  railroads  upon  any  street  or  road.2 
[89  v.  349;  87  v.  178;  63  v.  55,  §  4;  61  v.  53,  §  1;  S.  &  S. 
136;  S.&S.  137.] 

(!)    §  3438  is  now  superseded  by  (2)    Validity. —  This  section  was 

§  29,  which  see,  page  144.  held   constitutional   in   Toledo,   etc., 


707  THE    OHIO    MUNICIPAL    CODE. 

Ry.  v.  Toledo,  etc.,  Ry.,  6  C.  C.  362.  fie    arrangements    for    joint    use    of 

See  also,  same  case  affirmed,  50  O.  tracks.     State  v.   Elec.   St.   Ry.,    19 

S.  603.  C.    C.    79,    90.     A    second    company 

Appropriation  of  other  tracks,  may     appropriate     the     right     to 

— -  The    right    to    appropriate    the  "  straddle "  the  tracks  of  the   first 

right  to   use   the  track   of    another  company.     H.  G.  &  C.  Traction  Co. 

company,  does  not  exhaust  the  fran-  v.   C.  D.  &  T.  Traction  Co.,  47   B. 

chise  of   such  other  company.     To-  354. 

ledo,   etc.,  Ry.  v.   Toledo,  etc.,  Ry.,         Use  by  third  company  —  Where 

6  C.  C.  362.     The  right  of  eminent  a    company    has    appropriated    the 

domain     not     affected     by     motive  right  to  use  the  tracks  of  another 

power.     State  ex  rel.  v.  Taylor,  55  companVj    it   cannot  claim   compen- 

O.  S.  61,  66.  sation  from  a  third  company  which 

The  right  to  appropriate  the  use  is   given  the   use  of  the  tracks  by 

of  track  of  another  company,  is  not  the  original  company.     Toledo,  etc., 

interfered  with  by  the  sections  giv-  Ry.  Co.  v.  Toledo  and  Maumee  Val- 

ing  companies  power  to  make  traf-  ley  Ry.  Co.,   10  C.   C.   168. 

Sec.  3441  R.  S.  [The  authority  controlling  the  public  road  must 
consent.]  If  the  public  road  along  which  the  railway  is  to  be 
constructed  is  owned  by  a  person  or  company,  or  is  within  the 
control  or  management  of  the  board  of  public  works  or  other 
public  officer,1  such  person,  company,  or  officer  may  agree  with 
the  person  or  company  contracting  the  railway  as  to  the  terms 
and  conditions  upon  which  the  road  may  be  occupied.2  [67 
v.  10,  §  1.] 

(1)  County  commissioners  in-  control  of  road  does  not  give  the 
eluded. —  See  R.  R.  Co.  v.  Comm'rs,  right  to  take  the  road,  if  no  agree- 
56  O.  S.   1,  7.  ment    is    reached.     The    alternative 

( 2 )  Scope  of  power. —  The  is  appropriation  under  §  3440  R. 
power  to  agree  with  authorities  in      S.     lb.    . 

Sec.  3442 U.S.     [Form  of  oath  in  appropriation  proceedings.] 

In  case  of  appropriation  of  property  for  such  purpose,  the  oath 
to  be  administered  to  the  jury  shall  be  as  follows :  "  You 
and  each  of  you  do  solemnly  swear  that  you  will  justly  and 
impartially  assess,  according  to  your  best  judgment,  the  amount 
of  compensation  which  is  due  to  [here  name  the  owner  or  own- 
ers], by  reason  of  the  appropriation  of  the  street  or  avenue  [as 
in  the  statement  described],  irrespective  of  any  benefit  from 
any  improvement  proposed  by  said  [here  name  the  company, 
individual,  or  company  of  individuals],  and  that  you  will  in 
assessing  any  damages  that  may  accrue  to  [here  name  the 
owner  or  owners],  by  reason  of  the  appropriation,  other  than 
the  compensation,  further  ascertain  how  much  less  valuable  the 
lot  or  lots  of  said  [here  name  the  owner  or  owners] ,  will  be  in 
consequence  of  such  appropriation."     And  the  jury,  in  asoer- 


STREET    RAILWAYS    IN    MUNICIPAL    STREETS.  708 

taining  such  compensation  or  damages,  shall  determine  the 
amount  thereof  without  reference  to  the  distinction  between  a 
public  and  a  private  nuisance,  and  the  effect  of  such  distinc- 
tion upon  the  right  of  such  owner  or  owners  to  claim  compen- 
sation or  damages,  and  the  court  shall,  if  requested,  so  direct 
the  jury.      [63  v.  55,  §  5 ;  S.  &  S.  138.] 

Sec.  3443  U.S.  [Council,  etc.,  may  fix  terms  and  conditions.] 
Council,  or  the  commissioners,  as  the  case  may  be,  shall  have 
the  power  to  fix  the  terms  and  conditions  upon  which  such 
railways  may  be  constructed,  operated,  extended,  and  consoli- 
dated.1     [67  v.  10,  §  1;  6Q  v.  140,  §  1.] 

( 1 )    Power   of    council. —  As    to  conditions     implies     the     right     to 

power  of  council  to  fix  terms  upon  agree  upon  the  duration  of  the  oc- 

which    one    railway    company    may  cupancy    of    the    streets    and    limit 

use    portion    of    tracks    of    another  the  period  of  the  grant.     Louisville 

railway  company,   see  Railroad  Co.  Trust    Co.    v.    Cincinnati,    10  O.   F. 

v.  Railroad  Co.,  36  O.  S.  239.  D.  112. 

The   right   to    impose   terms    and 

Sec.  3443a  R.  S.  [Watchmen  at  street  crossings,  intersections 
and  corners.]  Whenever  any  street  railways  are  operated  by 
electricity,  cable,  compressed  air,  or  any  motive  power  other 
than  horses  or  mules,  in  any  municipality,  the  board  of  legisla- 
tion or  council  of  such  municipalities  shall  have  the  power  by 
ordinance  to  require  the  owners  or  operators  of  any  such  street 
railways  to  place  watchmen  at  any  street  crossings,  intersec- 
tions or  corners  which  such  board  of  legislation  or  council  may 
deem  dangerous ;  and  to  provide  for  the  proper  enforcement  of 
such  ordinances  by  penalties  in  the  way  of  fine  or  imprison- 
ment, or  both,  which  may  be  imposed  upon  the  owner,  officer, 
or  operator  of  such  street  railways  or  by  a  penalty  of  not  ex- 
ceeding $100  per  day,  which  may  be  recovered  by  such  munici- 
palities in  a  civil  suit  against  the  owners  or  operators  of  any 
such  street  railway  failing  to  place  such  watchmen  as  may  be 
required.      [89  v.    346.] 

Sec.  3443 — 1  R.  S.  [Street  railroad  route  in  Cincinnati  made 
valid.]  §  1.  That  in  all  cases  where  in  cities  of  the  first  grade 
of  the  first  class  the  council  has  heretofore,  by  ordinance,  estab- 
lished any  street  railroad  route  and  declared  tht  conditions 
upon  which  a  street  railroad  should  be  constructed  and  oper- 
ated upon  and  along  such  route,  and  due  publication  of  a  notice 
has  been  made  calling  for  proposals  to  construct  and  operate 
such  street  railroad  to  be  awarded  to  the  corporation,  individ- 
ual or  individuals  that  should  agree  to  carry  passengers  thereon 
at  the  lowest  rates  of  fare,  and  the  proposal  of  a  bidder  who 
obtained  and  filed  the  written  consents  of  the  owners  of  the  ma- 
jority of  the  feet  front  of  property  on  each  street  on  the  line  of 


709  THE    OHIO    MUNICIPAL    COEE. 

the  route  has  been  accepted  thereon,  and  an  ordinance  passed 
granting  to  such  bidder  the  franchise  to  construct  and  operate 
such  street  railroad,  and  such  bidder  has  accepted  the  same  and 
entered  into  a  written  contract  with  such  municipal  corpora- 
tion to  construct  and  operate  such  street  railroad,  such  ordi- 
nance, grant,  contract  and  franchise  shall  be  deemed  and  held, 
in  all  respects,  to  be  valid  and  binding,  notwithstanding  the 
submission  of  another  bid  at  such  letting  by  a  bidder  proposing 
to  carry  passengers  on  such  route  as  a  lower  rate  of  fare,  who 
failed  and  neglected  to  obtain  and  file  the  written  consent  of 
any  of  the  property  owners  on  the  line  of  said  route.1  [88 
v.  303.] 

(1)    Construction   of   section.—  Knorr  v.  Miller,  5  C.  C  609. 

Sec.  3443 — 2  R.  S.  [Authorizing  municipal  authorities  to  grant 
permission  to  extend  tracks,  etc.;  fare  must  not  be  increased.] 

§2.  In  cities  of  the  first  grade  of  the  first  class  the  board  of  city 
affairs  or  board  of  public  improvement,  or  their  successors  in 
office,  may,  by  resolution,  grant  permission  to  any  corporation, 
individual  or  company  owning  or  having  the  right  to  construct 
any  street  railroad,  to  extend  their  tracks  and  route  subject 
to  such  provisions  of  sections  3437,  3438,  3439,  3440,  3441, 
3442  and  3443  of  the  Revised  Statutes  *  as  are  applicable  and 
not  in  conflict  herewith,  on  any  street  or  streets  when  such 
board  may  deem  such  extension  beneficial  to  the  public;  and 
when  any  such  extension  is  made,  the  charge  for  carrying  pas- 
sengers on  any  street  railroad  so  extended,  and  its  connections 
made  with  any  other  road  or  roads  by  consolidation  under  ex- 
isting laws.,  shall  not  be  increased  by  reason  of  such  extension 
or  consolidation.      [88  v.  303.] 

(1)    Sections  referred  to. —  See  note   (1)  under  §  2503  R.  S.  avpra. 

Sec.  3443 — 3  R.  S.  [Forward  vestibule  of  car  must  be 
screened  and  heated.]  §  1.  Every  electric  street  car  other 
than  trail  cars,  which  are  attached  to  motor  cars,  shall  be  pro- 
vided, during  the  months  of  November,  December,  January, 
February  and  March  of  each  year  at  the  forward  end  with  a 
screen  constructed  of  glass  or  other  material,  which  shall  fully 
and  completely  protect  the  driver  or  motorman  or  gripman  or 
other  person  stationed  on  such  forward  end,  and  guiding  and 
directing  the  motor  power  by  which  they  are  propelled,  from 
wind  and  storm,  and  the  space  provided  on  such  car  for  such 
person  shall  during  the  said  months  be  provided  with  a  suffi- 
cient heating  device  to  maintain  a  temperature  at  all  times  not 
below  60  degrees  Fahrenheit.  [1906,  Feb.  9,  98  v.  5;  90  v. 
220.] 


STREET    RAILWAYS    IN    MUNICIPAL    STREETS.  710 

Sec.  3443 — 4R.  S.     [Penalty;  duty  of  prosecuting  attorney.] 

§  2.  Any  person,  agent  or  officer  of  any  association  or  corpora- 
tion violating  the  provisions  of  this  act  shall,  upon  conviction,  be 
fined  in  any  sum  not  less  than  $25  nor  more  than  $100  for 
each  day  each  car  belonging  to  and  used  by  any  such  person, 
association  or  corporation  is  directed  or  permitted  to  remain  un- 
provided with  the  screen  required  in  section  one  [§  (3443 — 3)] 
of  this  act;  and  it  is  hereby  made  the  duty  of  the  prosecuting 
attorney  of  each  county  in  this  state  to  institute  the  necessary 
proceedings  to  enforce  the  provisions  of  this  act.1      [90  v.  220.] 

( 1 )    Held   constitutional.  —  See  State   v.   Nelson,    52   O.    S.    88. 


Sec.  3443 — 6  R.  S.  [Repair  of  crossings  at  intersecting  street 
railroads;  stopping  of  cars  at  crossing.]  §  1.  Where  the  tracks 
of  two  street  railroads  cross  each  other  or  in  any  way  connect  at 
a  common  grade,  when  one  or  both  such  street  railroads  use 
other  than  horse  power  for  propelling  their  street  cars,  the 
crossings  shall  be  made  and  kept  in  repair  at  the  joint  expense 
of  the  companies  owning  the  tracks,  and  all  such  cars  used  on 
said  street  railroads  shall  come  to  a  full  stop,  not  nearer  than 
ten  feet  nor  further  than  fifty  feet  from  the  crossing,  and  shall 
not  cross  until  the  way  is  clear;  and  when  two  or  more  cars 
approach  the  crossing  at  the  same  time  the  car  or  cars  on  the 
road  first  built  shall  have  precedence.1      [88  v.  581.] 

'  (1)  Effect. — Section  does  not  re-  sons  in  charge  of  street  cars.  Kopp 
lieve  railroad  company  of  operating  v.  B.  &  O.  S.  W.  Ry.  Co.,  25  C.  C. 
gates  at  crossings  so  as  to  warn  per-      546. 

Sec.  3443 — 6  R.  S.  [Full  stop  when  approaching  intersecting 
steam  railway,  etc.]  §  3.  That  whenever  the  tracks  of  any  street 
railroads  in  this  state  cross  the  tracks  of  any  steam  railway  at 
grade,  the  street  railway  company  operating  said  line  of  cars 
shall  cause  their  street  cars  to  come  to  a  full  stop  not  nearer 
than  ten  feet  nor  further  than  fifty  feet  from  the  crossing,  and 
before  proceeding  to  cross  said  steam  railway  tracks,  shall 
cause  some  person  in  their  employ  to  go  ahead  of  said  car  or 
cars  and  ascertain  if  the  way  is  clear  and  free  from  danger  for 
the  passage  of  said  street  cars,  and  said  street  railroad  cars 
shall  not  proceed  to  cross  until  signaled  so  to  do  by  such  per- 
son so  employed  as  aforesaid,  or  said  way  is  clear  for  their 
passage  over  said  tracks.  [88  v.  581.] 

Sec.  3443—7  R.  S.  [Penalties.]  §3.  Every  person  in 
charge  of  any  streetcar  or  cars  who  willfully  fails  to  comply 


711  THE    OHIO    MUNICIPAL    CODE. 

with  the  provisions  of  this  act,  and  fails  to  bring  said  car  or  cars 
which  he  has  in  charge  to  a  full  stop,  or  causes  the  same  before 
the  way  is  clear,  or  signaled  so  to  do  to  cross  said  steam  railroad 
tracks,  shall  be  personally  liable  to  any  person  injured  by 
reason  of  such  failure  as  aforesaid,  to  a  penalty  of  one  hundred 
dollars,  to  be  recovered  by  civil  action  at  the  suit  of  the  state  of 
Ohio,  in  the  court  of  common  pleas  of  any  county  wherein  such 
crossing  or  connection  is,  and  the  company  in  whose  employ 
such  person  having  charge  of  said  car  or  cars  is,  as  well  as  the 
person  himself  shall  be  liable  in  damages  to  any  person  or 
persons  injured  in  person  or  property  [having  charge  of  such 
car  or  cars]  as  aforesaid.1      [88  v.  581.] 


(1)     Liability    of    street    rail-      v.  Murray,  9  C.  C.  291   (aff'd  53  O. 
road  under  this  act  see  Street  Ry.       S.  570). 


Sec.  3443 — 11  R.  S.  [Leases,  purchases  and  traffic  arrange- 
ments.] §  4.  Such  companies  1  shall  have  power  to  lease,  pur- 
chase or  make  traffic  arrangements  with  any  other  street  railroad 
company  as  to  so  much  of  its  tracks  and  other  property  as  may 
be  necessary  or  desirable  to  enable  them  to  enter  or  pass  through 
any  city  or  village,  upon  the  same  terms  and  conditions  appli- 
cable to  other  street  railroads.2  And  any  existing  street  rail- 
road company  owning  or  operating  a  street  railroad  shall  re- 
ceive the  cars,  freight,  packages  or  passengers  of  any  other 
road,  upon  the  same  terms  and  conditions  as  they  carry  for 
the  general  public      [91  v.  285.] 

(1)  Companies  means  companies  Interurban  railways  coming  into 
incorporated  for  constructing  street  municipality  under  this  section  are 
railroad  outside  of  municipalities.           subject  to  the  same  terms  and  con- 

(2)  Joint  use  of  tracks,  may  be  ditions  as  the  street  railway  corn- 
secured  also  under  §  3440  R.  S.  pany  whose  tracks  they  use,  and 
State  v.  Elec.  Ry.  Co.,  19  C.  C.  79.       such     interurban     companies     must 

Interurban     railway     may    make  give  and  accept  transfers,  if  the  city 

traffic     arrangements     with     street  railway  company  is  required  to  do 

railway    in    municipality,    for    car-  so.    Cincinnati  v.  Cincinnati  St.  Ry. 

riage    of    merchandise    for   hire,    as  Co.,  16  Dec.  220;  3  N.  P.    (N.  S.) 

well  as  passengers.     State  v.  Trac-  489. 
tion  companies,  64  O.  S.  272. 

Sec.  3443 — 14  R.  S.  [Street  railroad  in  Mansfield  may  operate 
a  light  and  power  plant,]  §  1.  The  council  of  any  city  which  at 
the  last  federal  census  had  or  which  at  any  subsequent  federal 
census  may  have  a  population  of  not  less  than  13,400  nor  more 
than  13,600  may  grant  permission  to  any  corporation,  individ- 
ual or  individuals  to  construct  and  operate  an  electric  power 
and  light  plant  in  connection  with  any  street  railroad  operated 


STREET    RAILWAYS    IN    MUNICIPAL    STREETS.  711a 

by  them,  and  may  prescribe  the  terms  of  constructing  and  op- 
erating the  same,  and  such  cities  may  renew  any  such  grants 
at  their  expiration  upon  such  conditions  as  may  be  considered 
conducive  to  the  public  interests.      [  88  v.  447.] 

An  act  to  provide  for  appropriation  of  private  property  in  mu- 
nicipalities by  corporations  for  street  railway  purposes. 

[Sec.  1.]  [Street  railway  companies  may  appropriate  private 
property  for  certain  purposes.]  That  whenever  it  is  deemed 
necessary  by  a  majority  of  the  directors  of  any  domestic  or  for- 
eign corporation  owning  or  operating  or  that  may  hereafter 
own  or  operate  a  street  railway  in  any  municipality  in  this 
state  to  appropriate  private  property  in  such  municipality  in 
order  to  avoid  dangerous  or  difficult  curves  or  grades,  or  unsafe 
or  unsubstantial  grounds  or  foundations  or  to  extend  or  shorten 
its  railway  line,  or  to  provide  additional  land  on  which  to 
extend  its  power  plant,  then  such  corporation  may  appropriate 
so  much  of  such  private  property  as  may  be  necessary  for  the 
said  extension  of  such  power  plant,  or  the  construction,  opera- 
tion, and  maintenance  of  the  tracks,  poles,  supports,  wires, 
cables  and  necessary  appliances  of  such  railway  other  than 
power  houses,  machine  shops,  stations  or  substations  in  the 
mode  and  manner  and  subject  to  the  provisions  provided  for 
the  appropriation  of  property  in  part  third,  title  2,  chapter  8, 
of  the  Kevised  Statutes  of  Ohio.  Provided,  however,  that  this 
act  shall  not  be  construed  to  amend  or  repeal  any  existing  laws 
relating  to  the  extension  of  street  railway  lines  within  mu- 
nicipalities. 

[Sec.  2.]  [Such  corporation  may  change  location  of  any  portion 
of  such  railway.]  For  the  purposes  hereinbefore  provided  such 
corporation  may  change  the  location  of  any  portion  of  its  rail- 
way, whether  heretofore  made  or  hereafter  made;  and  for  the 
purpose  of  making  any  such  change,  such  corporation  shall 
have  all  the  rights,  powers  and  privileges  to  enter  upon  private 
land  and  make  surveys  necessary  to  effect  such  change  as  fully 
as  railroad  companies  are  permitted  to  do  under  the  laws  of 
this  state.1      [1904,  April  17,  97  v.  106.] 

(1)    Scope  of  power. —  For  con-      ities,  see  Columbus,  etc.,  Ry.  Co.  v. 
struction  of  similar  statute  allowing      Cole,  47  B.  66. 
condemnation  outside  of  municipal- 


712  THE  OHIO  MUNICIPAL  CODE. 

[An  act  to  grant  to  municipalities  the  right  to  require  street 
railway  companies  to  sprinkle  their  right  of  way  within  such 
municipality.] 

[Sec.  1.]  [Council  may  require  street  railway  company  to 
sprinkle  its  right  of  way.]  The  council  of  any  municipality  may 
by  resolution  require  any  interurban  or  street  railway  com- 
pany to  sprinkle  with  water  their  right  of  way  on  any  street, 
alley  or  public  highway,  or  any  portion  thereof  lying  within 
the  limits  of  such  municipality. 

[Sec.  2.]  [How  enforced.]  Upon  failure  of  any  street  rail- 
way company,  after  proper  notice,  to  comply  with  the  provi- 
sion of  such  resolution,  the  municipality  may  do  such  sprin- 
kling or  contract  for  the  same  through  its  proper  officials  and 
in  accordance  with  the  laws  relating  to  contracts,  and  the  cost 
of  the  same  shall  be  certified  to  the  county  auditor  for  collec- 
tion, to  be  paid  by  such  interurban  or  street  railway  company 
as  other  taxes  are  paid. 

[Sec.  3.]  [Repeals.]  All  acts  or  parts  of  acts  inconsistent 
herewith  are  hereby  repealed.     [1906,  Feb.  8;  98  v.  5.] 

Change  of  Route  Law. 

An  act  authorizing  changes  in  [and]  the  extensions  of  existing 
street  railway  routes,  and  in  existing  transfer  systems. 

[Sec.  1.]  [Municipalities  may  agree  with  street  railway  com- 
pany for  payment  of  percentage  of  gross  receipts  in  lieu  of  car  li- 
cense fees.]  That  it  shall  be  competent  for  the  board  of  pub- 
lic service,  in  any  city  of  the  first  grade  of  the  first  class,  and 
for  the  council  or  other  legislative  body  of  any  other  municipal 
corporation,  by  and  with  the  consent  of  the  mayor,  to  agree  with 
any  street  railway  company  or  companies  operating  any  street 
railway  route  or  routes  in  such  city  or  other  municipal  corpo- 
ration for  the  payment  of  a  percentage  or  additional  percentage 
not  less  than  one  per  cent,  upon  its  gross  receipts  in  lieu  of 
car  license  fees  that  may  have  been  exacted  under  existing 
grants,  and  upon  such  changes  in  and  extensions  of  existing 
street  railway  route  or  routes,  and  any  changes  in  or  revision 
of  any  prevailing  or  existing  system  of  transfers  between  such 
routes  as  such  board  of  public  service  or  council,  or  other  leg- 
islative body,  may  deem  to  be  to  the  benefit,  convenience  or 
advantage  of  the  public ; 

[No  increase  in  rate  of  fare.]  provided,  that  nothing  herein 
contained  shall  be  construed  to  authorize  any  increase  in  the 
rate  of  fare  by  reason  of  any  such  changes,  revisions  or  ex- 
tensions ; 


STREET    RAILWAYS    IN    MUNICIPAL    STREETS.  712a 

[When  not  necessary  to  secure  consents  to  changes  or  extensions 
of  existing  routes.]  and  provided,  further,  that  when  any  such 
changes  in  or  extensions  of  existing  routes  are  made  so  as  to 
run  in  whole  or  in  part  over  and  along  existing  tracks  already 
belonging  to  such  company  or  companies,  it  shall  not  be  neces- 
sary to  secure  and  file  the  consents  to  such  changes  or  extensions 
of  the  owners  of  the  property  abutting  on  the  streets  on  which 
such  existing  tracks  are  located.  Provided,  further,  that  noth- 
ing herein  contained  shall  be  construed  to  authorize  the  ex- 
tension of  the  track  or  route  of  one  street  railway  company 
over  those  of  any  other  street  railway  company,  otherwise  than 
in  the  manner  already  provided  by  law,  excepting  by  agree- 
ment of  both  such  companies. 

[No  extension  in  length  of  franchise.]  Provided,  that  noth- 
ing herein  contained  shall  authorize  the  extension  of  existing 
street  railway  routes  or  any  portion  thereof  over  and  along 
existing  tracks  or  portions  thereof  for  a  longer  period  than  the 
terms  for  which  the  original  franchises  for  such  roads  or 
routes  existing  at  the  time  of  the  passage  of  this  act,  were 
granted. 

[Notice  of  pendency  of  ordinance  to  extend  or  change  route.] 
Provided,  further,  that  no  resolution  or  ordinance,  providing  for 
such  extension  or  change  of  route  or  routes,  or  changes  or  re- 
vision of  systems  of  transfers,  shall  be  passed  until  public 
notice  of  the  pendency  of  such  resolution  or  ordinance  shall 
have  been  given  in  one  or  more  of  the  daily  newspapers  pub- 
lished in  said  municipal  corporation,  if  there  be  such,  and,  if 
not,  then  in  one  or  more  newspapers  of  general  circulation  in 
said  municipal  corporation,  for  the  period  of  at  least  three 
consecutive  weeks; 

[When  consent  to  change,  etc.,  necessary.]  and  provided,  fur- 
ther, that  no  change  or  extension  of  any  existing  route  shall 
be  granted  over  any  street  or  streets  now  unoccupied  by  street 
railway  tracks,  unless  the  consent  of  a  majority  of  the  own- 
ers of  property  abutting  on  such  street  or  streets  shall  have  been 
first  obtained  as  now  by  law  required. 

[Sec.  2.]  [No  subsequent  change  in  five  years.]  Whenever  any 
street  railway  route  or  routes  shall  have  been  changed  under 
agreement  as  provided  in  the  preceding  section  of  this  act,  no 
subsequent  change  of  said  route  or  routes  shall  be  made  within 
a  period  of  &ve  years  thereafter.      [May  10,  1902,  95  v.  502.] 


713  THE    OHIO    MUNICIPAL    CODE. 


Inclined  Plane  Railways. 

Sec.  3444  R.  S.     [Powers  of  inclined  plane  railway  companies.] 

An  inclined  plane  railway  company  may  construct,  operate,  and 
maintain  an  inclined  plane  railway,  for  the  conveyance  of 
passengers  and  freight,  or  either,  with  such  offices,  depots,  and 
other  buildings  as  it  may  deem  necessary,  and  may  establish 
and  maintain  a  park  or  pleasure-grounds,  and  for  such  purpose 
may  acquire  and  hold  real  estate.      [73  v.  229,  §  2.] 

Sec.  3445  R.  S.  [How  street  crossings  to  be  made.]  When  the 
part  of  the  railway  of  such  company  which  is  operated  by  steam 
power  crosses,  a  public  street  or  highway,  it  must  pass  either 
over  or  under  such  street  or  highway,  and  shall  be  constructed  in 
such  manner,  and  at  such  distance  above  or  below  the  same  as 
not  to  obstruct  the  ordinary  use  of  such  street  or  highway.  [73 
v.  229,  §  10.] 


Interurban  Railway   Terminals. 

[An  act  authorizing  councils  of  municipalities  to  grant  fran- 
chises to  interurban  railroads,  using  electric  or  any  other  mo- 
tive power  except  steam,  for  the  purpose  of  securing  terminals 
in  municipalities.] 

Sec.  1.  [Council  authorized  to  grant  franchises  to  interur- 
ban railroads  for  the  purpose  of  securing  terminals  in  mu- 
nicipalities.] That  the  council  of  any  municipality  may  grant 
a  franchise  upon  such  terms  and  conditions  as  it  may  pre- 
scribe for  the  building  of  any  interurban  railroad  having,  con- 
structing or  building  ten  miles  or  more  of  track  outside  of 
such  municipality,  to  any  company  or  companies  using  electric 
or  other  motive  power,  save  steam,  for  the  purpose  of  securing 
to  such  company  or  companies  access  to  or  terminals  within 
said  municipality.  The  council  may  authorize  such  company 
to  build  and  construct  tracks  and  to  operate  cars  thereon,  on 
any  street  or  streets,  or  parts  of  streets,  of  such  municipality 
upon  which  tracks  have  not  already  been  laid  and  where  the 
consent  of  the  owners  of  a  majority  front  footage  has  already 
been  obtained  by  such  company. 

And  council  may  permit  such  interurban  railroad  to  make 
use  of  the  tracks  or  such  parts  of  the  tracks  of  any  existing 
street  railroad  company  within  the  limits  of  the  municipality 
by  agreement  with  the  existing  company  in  such  municipality, 
or  if  no  such  agreement  can  be  arrived  at,  such  interurban 
railroad  company  may  be  authorized  by  council  to  condemn 
the  right  to  make  use  of  the  tracks  of  such  existing  company 
upon  the  payment  of  proper  compensation,  provided  that  such 


STREET    RAILWAYS    IN    MUNICIPAL    STREETS.  713a 

interurban  railroad  company  shall  be  permitted  to  condemn 
and  make  use  of  not  more  than  one-eighth  of  the  trackage  of 
such  company  within  the  municipality,  or  so  much  as  may  be 
necessary  to  give  such  interurban  company  access  to  terminals 
within  such  municipality  or  to  enable  such  company  to  secure 
a  right  of  way  over  such  tracks  through  such  municipality, 
provided,  however,  that  any  such  interurban  railway  company 
seeking  permission  to  enter  or  pass  through  any  municipality 
shall  not  be  required  to  submit  to  competitive  bidding  on  such 
routes,  provided  that  no  grant  or  franchise  shall  be  made  to 
such  interurban  company  for  a  period  longer  than  20  years, 
and  provided  further  that  no  franchise  granted  under  the  pro- 
visions of  this  act  shall  be  used  for  the  purpose  of  operating  a 
municipal  street  car  system,  it  being  the  only  intent  of  this 
act  to  provide  a  method  whereby  bona  fide  interurban  rail- 
roads may  gain  access  to,  and  a  terminal  within,  and  an  exit 
from,  a  municipality.     [1906,  April  16,  98  v.  253.] 


714 


THE    OHIO    MUNICIPAL    CODE. 


XI 

MAGNETIC  TELEGRAPH   COMPANIES; 
WIRES  AND  SUBWAYS. 

Sec.  3461  R.  S.  [How  right  to  use  public  ground  acquired.] 
When  any  lands  authorized  to  be  appropriated  to  the  use  of  a 
company  x  are  subject  to  the  easement  of  a  street,  alley,  public 
way,  or  other  public  use,  within  the  limits  of  any  city  or  village, 
the  mode  of  use  shall  be  such  as  shall  be  agreed  upon  between 
the  municipal  authorities  of  the  city  or  village  and  the  com- 
pany,2 and  if  they  can  not  agree,3  or  the  municipal  authorities 
unreasonably  delay  to  enter  into  any  agreement,  the  probate 
court  4  of  the  county  in  a  proceeding  instituted  for  the  purpose 
shall  direct  in  what  mode  such  telegraphic  line  shall  be  con- 
structed along  such  street,  alley,  or  public  way,  so  as  not  to 
incommode  the  public  in  the  use  of  the  same ;  5  but  nothing  in 
this  section  shall  be  so  construed  as  to  authorize  any  municipal 
corporation  to  demand  or  receive  any  compensation  for  the  use 
of  a  street,  alley,  or  public  way,  beyond  what  may  be  necessary 
to  restore  the  pavement  to  its  former  state  of  usefulness.  [62 
v.  72,  §  5;S.  &S.  154.] 


(1)  Company  referred  to  is  a 

magnetic  telegraph  company,  pow- 
ers of  which  are  defined  in  Chap. 
4,  Title  II.,  Part  II.,  of  Bates'  Re- 
vised Statutes.  The  sections  here 
printed  are  a  part  of  that  chapter. 
A  foreign  telephone  company  can- 
not exercise  the  power  of  eminent 
domain  in  Ohio  to  condemn  a  right 
through  the  streets.  Central  Union 
Tel.  Co.  v.  Columbus  Grove,  28  C.  C. 
131;   8  C.  C.    (K.  S.)    81. 

(2)  Duration  of  right. — Upon 
expiration  of  agreement  with  city 
the  company's  right  to  use  the 
street  ceases.  State  v.  Telephone 
Co.,  11  C.  C.  55.  But  company  can- 
not be  ousted  until  a  failure  to 
agree  as  to  further  use  and  unrea- 
sonable delay  in  applying  to  Probate 
Court.  State  ex  rel.  v.  Telephone 
Co.,  14  C.  C.  273. 

Extent  of  municipal  power. — 
The  right  of  the  company  to  use  the 
streets  is  given  directly  by  the  leg- 
islature and  is  independent  of  the 


municipality,  except  that  the  mu- 
nicipality may  discharge  the  duty 
imposed  upon  it  of  keeping  the 
streets  in  repair  and  free  from  nui- 
sance and  may  fix  the  mode  of  use 
by  telephone  company  under  pro- 
visions of  §  3461.  The  city's  power 
is  exhausted  when  it  allows  the 
company  to  occupy  the  streets  and 
agrees  as  to  the  mode  of  using  the 
streets.  Macklin  v.  Telephone  Co., 
24  C.  C.  446;  1  C.  C.  (N.  S.)  373 
(aff'd  70  O.  S.  507);  Fitzsimmons 
Tel.  Co.  v.  Cincinnati,  2  N.  P.  (N. 
S.)  51;  Farmer  v.  Telephone  Co., 
72  O.  S.  526. 

Municipality  cannot  fix  tele= 
phone  rates.  —  Municipality  is 
without  power  to  fix  the  rates  to 
be  charged  or  to  require  free  tele- 
phones to  be  furnished  the  munic- 
ipality, and  the  telephone  company 
is  not  estopped,  by  agreeing  to  such 
terms,  from  increasing  the  rates  or 
refusing  free  telephones.  Farmer  v. 
Telephone  Co.,  72   O.   S,   526.     See 


MAGNETIC    TELEGRAPH    COMPANIES. 


715 


also  Macklin  v.  Telephone  Co.,  24 
C.  C.  446,  453;  1  C.  C.  (N.  S.)  373 
(aff'd  70  O.  S.  507). 

Revocation  of  right. — See  Cin- 
cinnati v.  Cin.  Edison  Co.,  26  B.  104. 

(3)  Failure  to  agree.— A  peti- 
tion which  shows  no  specific  ques- 
tions of  difference  between  the  cor- 
poration and  the  municipal  authori- 
ties, but  alleges  in  that  behalf  only 
that  they  have  failed  to  agree  on 
the  mode  of  use  of  the  streets,  and 
prays  for  a  general  judgment  direct- 
ing in  what  mode  plaintiff  may  con- 
struct its  telephone  lines  along  the 
streets,  does  not  state  facts  justify- 
ing any  order  or  judgment  in  its 
favor.  Queen  City  Telephone  Co.  v. 
Cincinnati,  73  O.  S.  64. 

Failure  to  agree  as  to  price  to  be 
charged  patrons  for  instruments  is 
not  such  failure  to  agree  as  to  mode 
of  use  contemplated  by  this  section. 
State  ex  rel.  v.  Telephone  Co.,  14 
C.  C.  273.  As  to  what  is  unreason- 
able delay  to  enter  into  agreement, 
see  Cincinnati  Telephone  Co.  v.  Cin- 
cinnati, 48  B.  986. 

(4)  Validity. — This  section  is 
not  unconstitutional  because  it  con- 
fers on  the  Probate  Court  the  power 
to  fix  terms  for  use  of  streets  by 
telegraph  companies.  Zanesville  v. 
Telegraph  &  Telephone  Co.,  64  O.  S. 
67. 


Probate  Court  has  jurisdiction  to 
make  order  directing  mode  of  use 
as  provided  in  this  section.    lb. 

Use  btv  another  company. — See 
Hauss  Elec.  Co.  v.  Jones  Bros.  Elec. 
Co.,  23  B.    137. 

Franchise  by  Probate  Court, 
cannot  require  telephone  company  to 
put  its  wires  and  apparatus  in  con- 
duits under  the  streets,  in  the  ab- 
sense  of  consent  by  municipal  au- 
thorities. Queen  City  Telephone  Co. 
v.  Cincinnati,  73  O.  S.  64;  contra, 
Cincinnati  Telephone  Co.  v.  Cincin- 
nati, 49  B.  83;  Cleveland  Telephone 
Co.  v.  Chagrin  Falls,  14  Dec.  449; 
Telephone  Co.  v.  Middletown,  2  N. 
P.    (N.   S.)    455. 

The  court  has  no  jurisdiction,  as 
part  of  its  order,  to  prescribe  or  de- 
termine the  rates  to  be  charged  by 
the  company,  and  so  much  of  a 
court's  order  as  undertakes  to  do 
this  is  void.  State  ex  rel.  v.  Toledo 
Home  Telephone  Co.,  72  O.  S.  60. 

A  company  is  not  estopped  to 
question  validity  of  court's  order 
fixing  rates  because  the  rates  were 
fixed  by  court's  order  upon  applica- 
tion of  the  company.     lb. 

Company  seeking  franchise  must 
prove  incorporation  and  due  and  le- 
gal election  of  directors.  Queen  City 
Telephone  Co.  v.  Cincinnati,  73  O.  S. 
64. 


Sec.  3471  It.  S.     [Chapter    applies    to    telephone    companies.] 

The  provisions  of  this  chapter 1  shall  apply  also  to  any  company 
organized  to  construct  any  line  or  lines  of  telephone ;  and  every 
such  company  shall  have  the  same  powers  and  be  subject  to 
the  same  restrictions,  as  are  herein  prescribed  for  magnetic 
telegraph  companies.2 

( 1 )  See  note  ( 1 )  to  §  346 1  R.  S.,  company  even  without  statutory  pro- 
supra.  vision.    Railway  v.  Telegraph  Ass'n, 

(2)  The  term  "  telegraph  "  was  48  O.  S.,  390,  423. 
held  sufficient  to  embrace  telephone 


Sec.  3471a  R.  S.  [E!ectric  light  companies,  and  power  and 
automatic  package  carrier  companies;  consent  of  municipality,  etc.] 
The  provisions  of  this  chapter,1  so  far  as  the  same  may  be 
applicable,  except  section  three  thousand  four  hundred  and 
sixty-one,  shall  apply  also  to  any  company  organized  for  the 
purpose  of  supplying  the  public  and  private  buildings,  manu- 
facturing establishments,  streets,   alleys,  lanes,  lands,  square* 


716  THE   OHIO   MUNICIPAL    CODE. 

and  public  places  with  electric  light  and  power,  or  automatic 
packags  carrier;  and  every  such  company  shall  have  the  same 
powers,  except  those  given  by  said  section  three  thousand  four 
hundred  and  sixty-one,  and  be  subject  to  the  same  restrictions, 
as  are  herein  prescribed  for  magnetic  telegraph  companies. 
Provided,  however,  that  in  order  to  subject  the  same  to  munici- 
pal control  alone,  no  person  or  company  shall  place,  string,  con- 
struct or  maintain  any  line,  wire  fixture  or  appliance  of  any 
kind  for  conducting  electricity  for  lighting,  heating  or  power 
purposes  through  any  street,  alley,  lane,  square,  place  or  land 
of  any  city,  village  or  town,  without  the  consent  of  such  munici- 
pality ;  and  this  inhibition  shall  extend  to  all  levels  above  and 
below  the  surface  of  any  such  public  ways,  grounds  or  places, 
as  well  as  along  the  surface  thereof;  but  this  inhibition  shall 
not  be  applicable  to  any  rights  which  have  heretofore  been 
received  and  exercised  through  proceedings  of  any  probate  court. 
Any  person  or  company  violating  any  portion  of  the  inhibition 
aforesaid  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 
upon  conviction  thereof  be  fined  in  any  sum  not  less  than  one 
hundred  and  not  more  than  five  hundred  dollars.  The  means 
thus  created  for  enforcing  said  inhibition  shall  be  held  to  be 
only  cumulative  to  any  other  lawful  means  open  to  the  munici- 
pality by  way  of  injunction  or  otherwise;  and  this  act  shall 
apply  to  actions  and  causes  of  action  or  proceeding  named  in 
section  seventy-nine  of  the  Revised  Statutes,  except  such  as  may 
be  pending  on  error,  and  not  on  appeal,  in  any  circuit  court  of 
the  state.      [92  v.  204;   84  v.  7.] 

(1)  See  note  (1)  to  §  3461  It.  S.,  Scope    of    prohibition.— As    to 

supra.  whether  prohibition  extends  to  case 

(2)  Provision  prospective.  —  0f  wjres  a  great  distance  above  or 
Provision  of  §  3471a  prohibiting  the  below  surfaee  of  gr0Und,  see  Henry 
placing  of  wires  through  a  street  for  v  Cincinnati,  1  C.  C.  (N.  S.)  289; 
conducting  electricity  has  a  pros-  25  C.  C.  178;  and  Butler  v.  Cin- 
pective  operation  and  does  not  affect  dnnati,  2  C.  C.  (N.  S.)  376. 
wires  already  properly  placed  in  the  The  word  u  thr0ugh  "  in  the  sec- 
street.  Henry  v.  Cincinnati,  25  C.  tion  was  held  not  to  apply  to  wires 
C.   178;   1   C.  C.    (N.  S.)    289.  strung  across  the  street.     Henry  v. 

A  municipality   will  be  enjoined  Cincinnati,  1  C.  C.  (N.  S.)  289;  25 

from     removing     a     wire     already  q^  q^  jyg^ 
placed.    lb. 

Sec.  3471 — 1 R.  S.  [Subways  for  telephone  and  telegraph 
wires  in  cities;  erection  of  poles;  penalty.]  §  1.  Any  com- 
pany organized  under  the  laws  of  this  or  of  any  other  state,  and 
owning  and  operating  a  telephone  exchange,  or  doing  a  telegraph 
business,  in  any  city  in  this  state,  may  construct  and  maintain 
underground  wires  and  pipes,  or  conduits  and  other  fixtures  for 
containing,  protecting  and  operating  such  wires  in  the  streets 


WIRES    AND    SUBWAYS.  717 

and  public  ways  of  said  city,  when  the  consent  of  such  city  has 
been  obtained  therefor,  and  it  shall  be  unlawful  for  any  cor- 
poration, company  or  individual  to  erect  any  telephone  or  tele- 
graph-pole or  poles  within  that  portion  of  any  city  in  this  state 
where  subways  have  been  constructed,  except  such  poles  as 
may  be  required  for  the  purpose  of  distributing  wires  from 
said  subways  to  subscribers,  stations,  and  all  such  poles  shall,  so 
far  as  possible,  be  located  in  alleys;  provided  that  this  section 
shall  not  apply  to  existing  telegraph  companies  until  such 
companies  shall  have  authority  and  sufficient  time  to  construct 
subways;  and  whoever  violates  any  of  the  provisions  of  this 
section,  shall  be  punished  by  a  fine  of  not  more  than  two  hun- 
dred and  not  less  than  fifty  dollars.      [91  v.  205  ;  88  v.  296.] 

Sec.  3471—2  R.  S.  [By  whom  consent  given.]  §  2.  Such 
consent  shall  be  given  by  the  board  of  city  commissioners,  board 
of  public  improvements,  board  of  public  works,  or  board  of  ad- 
ministration of  such  city,  or  their  respective  successors  in  office, 
or  by  the  city  council  in  cities  where  no  such  board  exists.  [88 
v.  296.] 

Sec.  3471 — 3  R.  S.  [Powers  of  electric  light  and  power  com- 
panies.] §  1.  A  company  organized  for  the  purpose  of  sup- 
plying electricity  for  power  purposes,  and  for  lighting  the 
streets  and  public  and  private  buildings  of  a  city,  village  or 
town,  may  manufacture,  sell  and  furnish  the  electric  light  and 
power  required  therein  for  such  and  other  purposes,  and  such 
companies  may  construct  lines  for  conducting  electricity  for 
power  and  light  purposes  through  the  streets,  alleys,  lanes,  lands, 
squares  and  public  places  of  such  city,  village  or  town,  by  the 
erection  of  the  necessary  fixtures,  including  posts,  piers  and 
abutments  necessary  for  the  wires,  with  the  consent  of  the 
municipal  authorities  of  the  city,  village  or  town,  and  under 
such  reasonable  regulations  as  they  may  prescribe.  Provided, 
that  all  wires  erected  and  operated  under  the  provisions  of  this 
act  shall  be  covered  with  a  water-proof  insulation,  and  said 
poles,  piers,  abutments  and  wires  shall  be  so  located  and  ar- 
ranged as  not  to  interfere  with  the  successful  operation  of  exist- 
ing telegraph  and  telephone  wires.      [83  v.  143.] 

Sec.  3471—5  R.  S.1  [Validity  of  prior  contracts.]  §  3.  That 
in  all  cases  where  contracts  such  as  are  provided  for  in  section 
2  [§(3471 — 4)]  2  of  this  act  have  been  entered  into  prior  to  its 
passage  and  there  may  have  been  any  omission  or  error  arising 
out  of  a  want  of  conformity  to  the  statutes  of  this  state  but 
which  contracts  have  been  made  as  required  by  this  act  and 
where  it  is  just  and  equitable  by  reason  of  the  expenditure  of 
money  or  labor  in  the  performance  of  said  contracts  or  on  any 
other  account  to  fully  execute  said  contracts,  then  and  in  all 


718  THE    OHIO    MUNICIPAL    CODE. 

such  cases  the  courts  of  this  state  are  hereby  authorized  and 
empowered  to  uphold  such  contracts  as  valid  and  binding  on  all 
parties  to  the  same  and  to  enforce  and  carry  them  into  effect 
in  all  respects  as  though  no  such  defect,  omission  or  error  ex- 
isted, any  law  of  this  state  to  the  contrary  notwithstanding. 
[92  v.   290.] 

(1)  §  (3471-4)  and  (3471-4a)  trie  light  companies.  It  is  re- 
omitted  here,  are  repealed  by  the  pealed  by  the  Code.  See  §  45  of  the 
Code.  Code,  where  power  to  contract  with 

(2)  §    (3471-4)   provided  for  con-  lighting  companies  is  given, 
tracts    of   municipalities   with  elec- 

Sec.  3471 — 6  R.  S.  [Subways  and  conduits  for  electric  wires, 
etc.,  in  Cincinnati.]1  §1.  Any  company  organized  for  the  pur- 
pose of  constructing  subways,  laying  pipes  and  operating  under- 
ground conduits  in  any  city  of  the  first  grade  of  the  first  class, 
in  which  to  place  and  maintain  electric  cables,  wires  and  other 
conductors  for  conveying  electric  currents  for  any  purpose,  may 
construct  such  subways  and  under-ground  conduits  through  the 
streets,  avenues,  sidewalks,  alleys,  lanes,  lands,  squares  and 
public  places  of  such  city,  and  maintain  such  subways  and 
conduits,  together  with  necessary  man-holes,  junction-boxes,  con- 
nection-boxes, feeders,  pipes  and  connections  to  and  from  such 
subways  and  conduits,  and  all  such  other  necessary  fixtures  and 
appliances  for  placing  and  safely  carrying  electricity  or  elec- 
trical conductors  beneath  the  surface  of  the  streets,  avenues, 
sidewalks,  alleys,  lanes,  lands,  squares  and  public  places  of  any 
such  city.      [88  v.  390.] 

(1)  Validity.— §§  3471-6  and  stitutional.  Cincinnati  Telephone 
3471-7  are  special  acts  and  uncon-      Co.  v.  Cincinnati,  49  B.  83. 

Sec.  3471 — 7  R.  S.  [Permission  for  construction  of,  etc. :  by 
whom  granted,  and  rules  governing  construction.]  §  2.  In 
cities  of  the  first  grade  of  the  first  class,  the  board  of  public 
improvements  and  their  successors  in  office  of  any  such  city 
shall  have  authority  in  case  such  city  should  not  construct  its 
own  system  of  subways  (and  in  the  event  it  does,  the  board  of 
public  improvements  or  their  successors  in  office  shall  have  pow- 
er to  contract  for  the  construction  of  the  same),  to  grant  to 
any  person,  company  or  corporation  organized  for  the  purpose 
of  constructing  subways,  laying  pipes  and  operating  under- 
ground conduits  in  which  to  place  and  maintain  electric  cables, 
wires  and  other  necessary  appliances  for  conveying  electric 
currents,  permission  and  authority  to  construct  and  operate  such 


WIRES    AND    SUBWAYS.  719 

subways  and  under-ground  conduits  through  the  streets,   ave- 
nues, sidewalks,  alleys,  lands,  squares  and  public  places  of  such 
city,  with  the  necessary  man-holes,  junction-boxes,  connecting- 
boxes,  feeders,  pipes  and  other  connections  and  appliances ;  and 
it  shall  be  unlawful  for  any  such  company  to  enter  upon  the 
construction  of  any  such  work,  or  to  open  or  take  up  the  pave- 
ments of  the  streets,  or  to  make  any  excavations  in  any  of  said 
streets,  avenues,  sidewalks  or  other  public  ways  of  said  city 
until  it  has  first  obtained  authority  so  to  do  from  the  board 
of  public  improvements  or  their  successors  in  office  in  cities  of 
the  first  grade  of  the  first  class ;  and  any  such  person,  company 
or  corporation  operating  or  maintaining  the  same  shall  be  sub- 
ject to  such  reasonable  regulations  as  the  board  of  public  im- 
provements or  their  successors  in  office  in  cities  of  the  first  grade 
of  the  first  class  shall  make  concerning  the  construction  and  use 
of  said  subways  and  conduits,  and  the  time,  manner  and  mode 
of  placing  wires,  cables  and  other  electrical  conductors  therein. 
And  it  is  hereby  made  the  duty  of  the  board  of  public  improve- 
ments or  their  successors  in  office  to  adopt  and  enforce  such, 
rules  and  regulations  so  as  to  secure  the  construction  of  said 
subways  and  under-ground  conduits  in  the  most  approved  man- 
ner, for  the  safety  of  persons  and  property  adjacent  to  and 
connected  with   said   subways   and   under-ground   conduits  [;] 
such  construction  shall  be  under  the  control  and  subject  to  the 
approval  of  the  chief  engineer  of  the  board  of  public  improve- 
ments or  their  successors  in  office  and  the  fact  that  such  ap- 
proved and  safe  construction  has  actually  taken  place,  shall  be 
certified  to  in  writing  by  the  said  engineer  before  any  use  shall 
be  made  of  the  same.     Provided,  however,  that  no  such  per- 
mission and  authority  hereinbefore  referred  [to]  shall  be  grant- 
ed by  said  board  of  city  affairs  to  any  such  company  until  said 
board  shall  have  advertised  in  some  paper  of  general  circula- 
tion in  such  city  on  at  least  one  day  of  each  week,  for  four 
consecutive  weeks,  for  bids  for  the  grant  of  such  permission  and 
authority,  and  no  such  grant  shall  be  made  except  to  the  highest 
bidder,  nor  for  a  less  compensation  to  the  city  than  the  annual 
sum  of  one  per  cent,  of  the  gross  proceeds  resulting  from  the 
operation  of  said  subways,  to  be  paid  for  such  grant  and  for 
the  purpose  of  keeping  in  repair  the  streets,  sidewalks  and  other 
places  wherein   such   subways   are   constructed   and  operated; 
and  but  one  such  company  shall  be  authorized,  in  any  case  to 
open  up  the  streets  for  such  purpose  or  to  construct,  own  and 
operate  subways  in  which  to  place  electric  wires,  and  all  such 
wires  except  telegraph  and  telephone  wires  shall  be  required 
to  be  laid  in  one  general  subway  constructed  for  the  purpose; 


720 


THE    OHIO    MUNICIPAL    CODE. 


and  said  board  shall  have  the  right  to  reject  any  and  all  bids. 
Provided,  that  nothing  in  this  act  contained  shall  be  construct- 
ed [construed]  so  as  to  authorize  or  require  the  placing  of  tele- 
graph or  telephone  wires  or  conductors  in  the  same  conduit  or 
conduits  with  electric  light,  power  or  railway  wires,  or  con- 
ductors, or  so  as  to  prevent  the  granting  by  municipalities  of 
the  power  to  place  telephone  or  telegraph  wires  or  conductors 
in  a  separate  conduit  in  the  streets  to  be  constructed  for  that 
purpose.  And  provided  further,  that  nothing  herein  contained 
shall  be  so  construed  as  to  conflict  with  any  orders  made  by  the 
probate  court  of  any  county,  containing  a  city  of  the  first 
grade  of  the  first  class,  for  maintaining  overhead  or  under- 
ground wires  or  conduits,  for  furnishing  electric  light,  heat  or 
power,  where  investments  are  made  on  the  faith  of  the  same; 
but  all  such  orders  of  the  court  shall  be  valid  and  binding 
upon  all  parties  thereto  and  their  successors  and  assigns.  [88 
v.  390.] 

Sec.  3471 — 8  R.  S.  [Bond  for  restoration  of  streets,  etc. ;  board 
of  improvements  to  fix  rental.]  §  3.  Nothing  herein  con- 
tained, however,  shall  authorize  any  person,  company  or  cor- 
poration to  construct  such  subways  or  conduits  or  to  excavate 
any  portion  of  any  street,  sidewalk  or  other  public  way  of  any 
such  city,  until  such  person,  company  or  corporation  has  first 
executed  a  bond  in  the  sum  of  two  hundred  and  fifty  thousand 
dollars,  conditioned  to  restore  such  streets,  sidewalks  and  other 
public  ways  to  their  original  state  of  usefulness,  and  to  keep 
the  same  in  repair  to  the  satisfaction  of  the  board  of  public 
improvements  or  their  successors  in  office,  and  its  chief  en- 
gineer for  a  period  of  iive  years  from  and  after  such  restoration 
thereof.  The  board  of  public  improvements  or  their  successors 
in  office  in  cities  of  the  first  grade  of  the  first  class  1  in  which 
such  subways  may  be  constructed,  shall  have  power  to  fix  the 
rental  to  be  charged  by  persons,  companies  or  corporations  own- 
ing or  operating  such  subways  for  the  use  and  occupation  of 
such  subways  or  conduits  by  electric  companies  or  companies 
using  or  supplying  electricity  for  any  purpose,  and  shall  esti- 
mate the  same  upon  a  percentage  based  on  the  amount  invested 
in  the  construction,  maintenance  and  operation  of  said  «uWays 
and  underground  conduits.      [88  v.  390.] 

(1)  Validity  denied,  because 
special  act,  see  Cincinnati  Telephone 
Co.  v.  Cincinnati,  49  B.  83. 


MARKET    HOUSES.  721 


XII 

MARKET  HOUSES. 


1.  MARKET  HOUSE  COMPANIES. 

Sec.  3858  R.  S.  [Market-house  companies.]  A  company  in- 
corporated for  the  purpose  of  constructing  and  maintaining  a 
market-house  may  construct,  erect,  establish,  and  maintain,  at 
the  place  named  in  its  articles  of  incorporation,  a  suitable 
building  or  buildings  to  be  appropriated  and  used  exclusively 
as  a  public  market-house,  for  the  sale  and  vending  of  meats, 
vegetables,  and  all  other  kinds  of  provisions,  and  of  fruits, 
plants,  and  flowers,  and  all  other  articles  commonly  sold  and 
vended  in  public  market-houses  or  spaces,  on  market  days,  in 
market  hours.      [58  v.  92,  §§  1,  2  ;  S.  &  S.  174.] 

Sec.  3859  R.  S.  [Powers  of  such  companies.]  Such  compan- 
ies may  rent,  lease,  sell,  or  dispose  of  stalls,  cellar  vaults,  or 
other  divisions  or  spaces  in  their  buildings,  in  such  manner,  and 
upon  such  terms  and  conditions,  as  the  directors  shall  deter- 
mine ;  but  a  uniform  rule  in  renting  or  leasing  such  stalls, 
cellar  vaults,  or  other  divisions  or  spaces,  shall  be  established, 
printed,  and  hung  in  conspicuous  places  in  the  buildings,  and 
the  same  may  be  changed,  from  time  to  time,  by  the  directors 
thereof;  and  no  preference  shall  be  made,  by  any  variation  or 
difference  in  rates  or  prices,  in  favor  of  citizens  of  the  city  or 
village  wherein  the  buildings  are  erected,  and  against  farmers, 
butchers,  or  producers  not  residing  in  such  city  or  village,  and 
no  rule,  regulation,  order,  or  condition  shall  be  made  or  exacted 
by  any  company  to  prevent  farmers,  butchers,  or  other  persons 
from  disposing  of  their  produce.,  meats,  vegetables,  or  other 
articles,  in  such  quantities  and  upon  such  terms  as  they  may 
deem. proper;  but  such  companies  shall  prohibit  and  prevent  in 
their  buildings  the  use  of  false  weights  or  measures,  the  ex- 
posure or  sale  of  any  diseased  or  decaying  meats  or  vegetables, 
and  any  offensive  or  injurious  articles.  [58  v.  92,  §  5 ;  S.  & 
S.  175.] 


722  THE    OHIO    MUNICIPAL    CODE. 

Sec.  3860  R.  S.  [May  keep  streets  unobstructed.]  Such  com- 
panies may  keep  the  streets,  alleys,  or  avenues  in  front  of  their 
buildings  free,  open,  and  clear  of  any  and  all  obstruction  from 
stoppage  of  wagons,  carriages,  or  vehicles  of  any  kind,  or  of 
horses,  mules,  or  cattle,  on  market  days,  in  market  hours.  [58 
v.  92,  §  6;  S.  &S.  175.] 

Sec.  3861 R.  S.  [May  construct  sewers.]  When  any  such 
company  erects  its  buildings  in  a  city  or  village  having  a  sewer 
with  which  the  company  may  connect  sewers  of  its  own  con- 
struction, sufficient  to  drain  its  buildings,  it  shall  construct  such 
sewers,  and  so  connect  them;  and  in  cities  and  villages  not 
having  sewers,  such  companies  may  construct  sewers  for  the 
drainage  of  their  buildings,  and  charge  and  receive  a  compen- 
sation for  the  tapping  and  use  of  the  same,  or  portions  thereof. 
[58  v.  92,  §  7;  S.  &  S.  175.] 

2.  CLEVELAND  MAEKET  HOUSE  COMMISSION.1 

Sec.  2581 — 1  R.  S.  [Market-house  commission;  number;  ap- 
pointment; term.]  §  1.  In  cities  of  the  second  grade  of  the 
first  class  there  shall  be  a  market-house  commission  consisting 
of  three  members,  all  of  whom  shall  be  appointed  by  the  mayor 
of  any  such  city  and  approved  by  the  council  and  who  shall 
serve  for  the  period  of  five  years,  and  until  their  successors  are 
appointed  and  qualified.      [93  v.   668.] 

(1)   The  sections  carried  here  are  pursuant  to  the  act    (93  0.  L.  668) 

in  the  list  of  repeals  in  the  Code,  from  which  these  sections  are  taken 

but    by    §    216    of   the    Code,    it   is  shall   continue   to   act  till   work   is 

provided  that  all  persons  appointed  completed. 

Sec.  2581— 2R.  S.     [Oath;   compensation;   bond.]     §2.     The 

members  so  appointed  shall  take  and  subscribe  an  oath  of  office 
to  honestly  and  faithfully  perform  their  duties ;  they  shall  serve 
without  compensation,  and  shall  give  a  bond  in  the  sum  of  five 
thousand  dollars  to  the  approval  of  the  mayor  of  any  such 
city.      [93  v.  668.] 

Sec.  2581 — 3  R.  S.  [Power  of  commission.]  §  3.  Such  com- 
mission shall  have  power  to  contract  for  the  building  of  a  new 
market-house  and  auditorium  for  any  such  city,  and  to  acquire 
any  additional  lands  that  may  be  necessary  for  that  purpose 
either  by  purchase  or  appropriation  in  the  name  of  any  such 
city  in  the  manner  now  provided  by  law.      [93  v.  668.] 

Sec.  2581— 4  R.  S.  [Bonds.]  §  4.  The  council  of  any  such 
city  may  and  is  authorized  and  empowered  for  the  purpose  of 


MARKET    HOUSES.  723 

this  act  to  borrow  money  and  issue  the  bonds  of  any  such  city 
in  the  name  and  under  the  corporate  seal  of  any  such  city  in 
a  sum  not  exceeding  three  hundred  and  twenty-five  thousand 
dollars,  which  bonds  shall  be  made  payable  not  more  than 
thirty  years,  as  the  city  council  shall  determine,  from  the  date 
of  their  issue,  and  shall  bear  interest  at  a  rate  not  exceeding 
five  per  cent,  per  annum,  payable  semi-annually,  as  such  city 
council  shall  determine.      [93  v.  668.] 

Sec.  2581 — 5  R.  S.  [Signing  and  attesting  of  bonds;  rent  from 
market-houses  to  be  placed  in  sinking  fund;  levy.]  §  5.  Such 
bonds  shall  be  signed  by  the  president  of  such  commission,  the 
mayor  of  any  such  city,  and  attested  by  the  city  auditor.  All 
rent  obtained  by  such  city  from  any  market-house  or  houses 
in  such  cities,  or  any  addition  thereto,,  shall  be  placed  in  the 
sinking  fund  of  such  city  until  a  sufficient  amount  has  been  re- 
ceived to  fully  pay  the  principal  and  interest  of  such  bonds; 
and  in  case  such  rents  shall  not  be  sufficient  to  pay  the  interest 
and  principal  of  such  bonds  as  the  same  may  become  due,  any 
such  city  council  shall,  in  addition  to  the  other  levies  authorized 
by  law,  levy  annually  a  sufficient  tax  therefor  on  the  property 
subject  to  taxation  in  any  such  city,  and  such  taxes  shall  be 
collected  in  the  same  manner  as  other  taxes.      [93  v.  668.] 

Sec.  2581—6  R.  S.  [Bonds  to  conform  to  sections  2700  to  2711 
R.  S.]  §  6.  Such  bonds,  except  as  otherwise  herein  provided, 
shall  in  all- respects  conform  to  the  requirements  of  sections 
2700  to  2711  of  the  Kevised  Statutes  of  Ohio.      [93  v.  669.] 

Sec.  2581— 7R.  S.  [Power,  of  member  to  create  liability.] 
§  7.  No  member  of  such  commission  shall  have  power  to  create 
any  debt  or  obligation,  claim  or  liability,  for  or  on  account  of 
such  commission,  except  with  the  express  authority  of  such  com- 
mission, conferred  at  a  meeting  thereof,  duly  convened  and  held. 
[93  v.  669.] 

Sec.  2581 — 8  R.  S.  [Record  of  proceedings.]  §  8.  Such  com- 
mission shall  keep  a  record  of  all  its  proceedings  under  the 
authority  of  this  act,  which  shall  be  open  at  all  reasonable 
times  to  the  inspection  of  any  resident  of  such  city.  [93  v. 
669.] 


724  THE    OHIO    MUNICIPAL.    CODE. 


XIII 

CEMETERIES.1 

Sec.  2534  R.  S.  [How  appropriations  shall  be  made.]  When 
an  appropriation  of  land  for  such  purposes  2  becomes  necessary, 
it  shall  be  made  by  the  municipal  corporation,  or  if  there  be 
more  than  one  such  corporation,  then- by  the  one  having  the 
largest  number  of  inhabitants  at  the  last  federal  census,  which 
corporation,  in  making  the  appropriation,  shall  act  for  itself 
and  any  other  corporation  or  township  uniting  with  it,  and  the 
proceedings  therefor  shall  be  the  same  as  required  in  this  title  3 
where  the  appropriation  is  to  be  made  for  the  use  of  the  corpo- 
ration alone.      [66  v.  212,  §  378.] 

(1)  Sections    on    cemeteries. —  (3)   Proceedings  for  appropria- 

§§  2534  to  2558  R.  S.,  and  §  2518  R.  tion.— The   method    for    appropria- 

S.,  carried  here  formed  part  of  Chap.  tion  here  referred  to,  is  that  found 

7,  Div.  8,  Title  XII.,  R.  S.     Of  the  in  Chap.   3,  Div.   7,  Title   XII.,   R. 

sections   in   this    chapter,    §§    2516,  S       This    chapter    is    now    repealed 

2517,   2521   to   2533,   inclusive,   and  and    method    of    appropriation   pro- 

2533a,  are  re-enacted  in   §  8  of  the  vided  for  by  §§  10  to  22  of  the  Code. 

Code.     The  other  sections,  not  car-  Public    cemetery. —  A    cemetery 

ried  here,  are  repealed  by  the  Code.  belonging   to    a   private   association 

(2)  "Such  purpose"  refers  to  was  held  not  a  public  cemetery 
union  of  cities  and  townships  for  within  the  meaning  of  §  3284  R.  S. 
cemetery  purposes.  §  2532  R.  S.  re-  Youngstown  v.  Railroad,  3  C.  C. 
enacted  in  §  8  of  the  Code,  page  72.  214. 

Sec.  2535  R.  S.  [Titles,  how  vested.]  The  title  to  such  cen> 
etery  grounds,  whether  by  purchase  or  otherwise,  shall  vest  in 
and  he  held  hy  the  corporation  making  the  appropriation,  in 
trust  for  the  use  of  its  inhabitants  and  the  inhabitants  of  the 
other  corporations  or  townships  in  common;  and  provision 
shall  he  made  for  the  interment  in  such  cemetery  of  all  persons 
buried  at  the  expense  of  the  corporations  or  townships.  [66 
v.  212,  §  379.] 

Sec.  2536  R.  S.  [Expenses,  etc.,  to  be  pro  rata.]  The  expense 
of  such  purchase,  or  of  the  proceedings  in  case  of  appropriation, 


CEMETERIES.  725 

and  the  damages  awarded,  or  both,  shall  be  borne  by  the  corpo- 
rations and  townships  in  proportion  to  the  property  of  each  on 
the  duplicate  for  taxation,  and  the  amount  of  bonds  issued  by 
each  in  any  case,  for  such  cemetery  purposes,  shall  be  in  the 
same  proportion,  and  the  percentage  of  taxation  for  all  such 
cemetery  purposes  shall  be  the  same  in  the  corporations  and 
townships.      [66  v.  212,  §  380.] 

Sec.  2537  R.  S.  [Control  and  management.]  The  cemetery  so 
owned  in  common,  shall  be  under  the  control  and  management 
of  the  trustees,  and  their  authority  over  the  same  and  their 
duties  in  relation  thereto,  shall  be  the  same  as  where  the  ceme- 
tery is  the  exclusive  property  of  a  single  corporation.1  [66  v. 
212,  §  381.] 

(1)  Managing  board. — See  note 
under  §  2521  R.  Sv  re-enacted  in 
§  8  of  the  Code    (page  68). 

Sec.  2538  R.  S.  [Power  to  enforce  ordinances,  etc.]  The  coun- 
cil of  any  city  or  village  owning  a  cemetery  in  common  with 
any  other  city,  village,  or  township  as  aforesaid,  shall  have 
full  power  and  authority  to  pass  and  enforce  all  ordinances 
necessary  to  carry  into  effect  the  provisions  herein  contained, 
and  such  as  may  be  deemed  necessary  for  the  preservation  and 
regulation  of  such  cemetery  and  the  protection  thereof,  and  for 
the  punishment  of  any  person  violating  the  ordinances,  rules, 
and  regulations,  relating  to  such  cemetery ;  and  the  mayor  and 
police  officers  of  such  corporation  shall  have  full  and  complete 
jurisdiction  and  authority  to  enforce  all  such  ordinances,  rules, 
and  regulations,  as  if  such  cemetery  grounds  were  located  within 
or  owned  exclusively  by  the  corporation.      [66  v.  212,  §  382.] 

Sec.  2539  R.  S.  [Discrimination  forbidden.]  No  distinction  or 
discrimination  of  any  kind  shall  be  made  by  the  trustees  of  such 
cemetery  owned  in  common,  in  favor  of  one  corporation  against 
another,  or  in  favor  of  a  corporation  against  a  township,  or 
in  favor  of  a  township  against  a  corporation,  but  the  affairs 
of  the  cemetery  shall  in  all  respects  be  managed  as  though  the 
same  were  owned  and  governed  in  the  interests  of  the  corpora- 
tion or  township  alone.      [66  v.  213,  §  383.] 

Sec.  2540  R.  S.  [Joint  meeting  of  council  and  trustees.]  In 
case  of  a  union  for  cemetery  purposes  between  a  municipal  cor- 
poration and  a  township,  the  council  of  the  corporation  and  the 
trustees  of  the  township  shall  have  a  joint  meeting  at  the  coun- 
cil-chamber of  the  corporation,  on  the  day  of  the  first  regular 


726  THE    OHIO    MUNICIPAL    CODE. 

meeting  of  the  council  in  the  month  of  May  of  each  year,  for  the 
purpose  of  determining  the  rate  [of  tax]  to  be  levied  upon  the 
taxable  property  of  the  corporation  and  the  township  for  the  pur- 
poses herein  required ;  and  upon  the  passage  of  a  joint  resolution 
by  a  majority  of  the  members  of  the  council  and  the  trustees, 
fixing  the  rate  of  taxation,  it  shall  be  the  duty  of  the  clerk  of 
the  corporation  to  certify  such  rate  to  the  auditor  of  the  county 
for  assessment  and  collection ;  and  in  case  there  is  more  than 
one  municipal  corporation  or  township  united  for  such  purposes, 
the  councils  and  trustees  of  the  townships  shall  become  such, 
joint  body  with  the  same  powers  as  if  there  had  been  one  such 
corporation  and  township,  and  the  clerk  of  the  corporation  con- 
taining the  greatest  number  of  inhabitants  shall  certify  to  the 
auditor  as  above  provided,  the  rate  of  taxation.  [66  v.  213, 
§  384.] 

Sec.  2541  It.  S.     [Joint  meetings  to  make  rules,  etc.]  The 

trustees  of  such  township  or  townships,  or  the  council  or  coun- 
cils of  such  municipal  corporation  or  corporations,  may  at  any 
time  call  a  point  meeting  of  the  council  or  councils  and  the 
trustees  of  the  township  or  townships,  on  a  reasonable  notice 
given  by  either,  for  the  purpose  of-  making  joint  rules  and 
regulations  for  the  government  of  such  cemetery,  or  changing 
the  same,  and  making  such  orders  as  may  be  found  necessary 
for  the  application  of  moneys  arising  from  the  sale  of  lots,  taxes, 
or  otherwise.      [66  v.  213,  §  385.] 

Sec.  2542  It.  S.     [Vote,  and  record  thereof.]  In  all  joint 

meetings,  each  member  of  the  councils  and  each  of  the  trus- 
tees shall  have  one  vote  in  determining  all  questions ;  and 
the  proceedings  of  all  joint  meetings  shall  be  recorded  by 
the  clerk  of  the  corporation  having  the  greatest  number  of 
inhabitants.      [66  y.   213,  §   386.] 

Sec.  2543  It.  S.  [Adjoining  townships  may  be  admitted  to  par- 
ticipation, etc. ;  any  municipal  corporation  or  township  may  with- 
draw.] Any  township  adjoining  one  in  which  a  cemetery  is 
established  by  the  union  of  any  of  the  bodies  as  hereinbefore 
provided,  may,  by  consent  of  the  trustees  of  such  township  and 
of  the  council  or  councils  of  the  corporation,  be  admitted  to  an 
equal  participation  with  the  inhabitants  thereof  in  the  rights 
and  privileges  in  such  cemetery,  upon  such  terms  as  may  be  mu- 
tually agreed  upon,  but  the  title  and  control  of  the  cemetery 
shall  continue  vested  in  the  corporation  as  above  provided ;  and 
any  municipal  corporation  or  township  which  has  heretofore 
united,  or  which  may  hereafter  unite  with  any  other  municipal 
corporation  or  township,  or  both,  in  the  establishment  or  con- 
trol of  a  cemetery  under  the  provisions  of  this  chapter,  may  by 
a  resolution  of  the  council  of  such  corporation  or  of  the  trustees 
of  such  township  and  with  the  consent  of  the  council  of  the 


CEMETERIES.  727 

remaining  corporation  and  trustees  of  the  remaining  township 
or  townships,  withdraw  from  the  management  and  control  of 
such  cemetery,  and  relinquish  the  interest  of  such  corporation 
or  township  therein,  and  thereupon  such  cemetery  shall  be 
under  the  management  and  control  of  such  remaining  corpora- 
tion and  township  or  corporations  and  townships.  [1883, 
January  25 :  80  v.  6 ;  Rev.  Stat.  1880;  66  v.  214,  §  390 
(S.  &  C.  1564).] 

Sec.  2544  R.  S.  [Public  burial  ground,  etc.,  may  be  appropri- 
ated.] In  the  establishment  of  cemeteries  as  herein  provided, 
any  city  or  village  and  any  township  may  make  use  of  any 
public  burial  ground  or  cemetery  ground  which  may  be  held  by 
such  city,  village,  or  township,  and  may  make  use  of  any  land 
which  such  city,  village,  or  township,  may  have  acquired  by 
dedication,  gift,  or  devise  for  burial  purposes.  [66  v.  213, 
§  387.] 

Sec.  2545 U.S.  [Purchase  of  lands;  improvements,  etc.]  The 
council  of  any  city  or  village,  and  the  trustees  of  any  township, 
may  purchase  of  any  cemetery  association  incorporated  under 
existing  laws,  the  lands,  lots,  and  improvements  of  such  ceme- 
tery association  remaining  unsold,  for  cemetery  purposes,  and 
take  a  conveyance  thereof;  but  the  purchase  money  in  such 
cases  shall  be  applied  to  the  payment  of  the  legal  debts  of  such 
association,  and  to  the  embellishment  and  preservation  of  the 
land  purchased,  and  such  other  purposes  as  the  trustees  of  the 
cemetery  may  direct.      [66  v.  213,  §  388.] 

Sec.  2545a  R.  S.  [Municipality  or  township  may  transfer  ceme- 
tery property  to  cemetery  association.]  The  city  council  of  any 
city  or  village,  and  the  trustees  of  any  township,  may  transfer 
to  any  cemetery  association  incorporated  under  existing  laws, 
the  lands,  lots,  and  improvements  of  such  cemetery,  now  owned 
and  controlled  by  said  city,  village  or  township,  for  cemetery 
purposes ;  said  cemetery  association  shall  assume  all  legal  debts 
on  said  cemeteries  so  transferred.  [1904,  April  22,  97  v. 
165.] 

Sec.  2546  R.  S.  [Rights  and  titles  inviolate.]  The  rights  and 
titles  of  lot  owners,  purchased  prior  to  such  sale  and  convey- 
ance, shall  not  be  questioned ;  and  such  lot  owners  shall  continue 
to  hold  and  occupy  their  lots,  under  such  rules  and  regulations 
as  shall  be  adopted  for  the  government  and  regulation  of  such 
cemetery  by  the  authorities  making  such  purchase.  {66  v. 
214,  §  389.] 

Sec.  2547  R.  S.  [Clerk  shall  record  plat  of  ground,  etc.]  It 
shall  be  the  duty  of  the  clerk  of  the  corporation  to  record,  in 
a  book  to  be  provided  for  that  purpose,  a  plat  of  all  grounds  for 
cemetery   purposes  laid   out  into  avenues,   walks,   paths,   and 


728  THE    OHIO    MUNICIPAL    CODE. 

lots,  and  he  shall  execute  to  the  purchasers  of  lots  such  convey- 
ance as  may  be  necessary  to  carry  into  effect  the  contracts  of 
sale;  and  such  conveyance  shall,  at  the  expense  of  the  person 
receiving  it,  be  recorded  in  a  book  to  be  kept  for  that  purpose, 
by  the  clerk  of  the  corporation.      [66  v.  214,  §  391.] 

Sec.  2548  R.  S.  [Powers  of  council  as  to  cemeteries.]  The 
council  of  any  city  or  village  owning  a  public  burial-ground  or 
cemetery,  whether  within  or  without  the  corporation,  may  pass 
and  provide  for  the  enforcement  of  ordinances  necessary  to 
carry  into  effect  the  provisions  of  this  chapter,  and  regulate 
such  public  burial-grounds  and  cemeteries,  the  improvement 
of  the  same,  and  the  burial  of  the  dead  therein;  define  the 
tenure  and  conditions  on  which  lots  therein  shall  be  held;  and 
protect  such  burial-grounds  and  cemeteries  and  all  fixtures 
thereon.      [70  v.  274,  §  392;  (S.  &  C.  1563).] 

Sec.  2549  U.S.  [Power  to  sell  portions  of  cemetery.]  The 
council  may  sell  any  portion  of  such  cemetery  grounds  not 
already  used  for  the  burial  of  the  dead,  which  are  unsuitable  for 
burial  purposes,  and  purchase  with  the  proceeds  thereof  other 
suitable  lands  lying  contiguous  thereto;  but  no  such  sale  shall 
be  made  until  the  council  shall  have  contracted  for  an  equal  or 
greater  quantity  of  land  suitable  for  burial  purposes :  provided, 
that  the  trustees  of  any  cemetery,  elected  under  this  chapter, 
for  the  purpose  of  paying  any  indebtedness,  arising  out  of  the 
purchase  or  improvement  of  such  cemetery,  shall,  with  the 
consent  of  the  council  of  the  corporation,  where  there  is  no 
union  with  any  other  corporation  or  township,  and  where  there 
is  such  union,  with  consent  of  the  bodies  acting  jointly  as 
provided  in  section  twenty-five  hundred  and  forty-one  have 
power  to  sell  or  mortgage  such  portion  of  the  real  estate,  belong- 
ing to  such  cemetery,  as  has  not  been  used  for  burial  purposes, 
or  as  may  not  be,  in  the  opinion  of  the  trustees,  needed  for 
such  purposes,  and  the  money  arising  from  such  sale  or  mort- 
gage, shall  be  applied  by  the  trustees  to  the  payment  of  such 
indebtedness,  and  to  no  other  purpose,  except  upon  such  sale 
where  there  may  be  a  surplus  after  the  payment  of  such  indebt- 
edness, in  which  case  such  surplus  money  shall  be  used  by  the 
trustees  in  the  improvement  of  such  cemetry  grounds,  and  for 
no  other  purpose.      [70  v.  274,  §  392 ;  64  v.  110  ;  S.  &  S.  877.] 

Sec.  2550  R.  S.1  [Burials  may  be  prohibitel  within  corporate 
limits.]  The  council  may  prohibit  the  interment  of  the  dead 
within  the  corporation  limits,  and,  for  the  purpose  of  making 
such  prohibition  effective,  may  not  only  impose  proper  fines 
and  penalties,  but  shall  also  have  power  to  cause  any  body, 
interred  contrary  thereto,  to  be  taken  up  and  buried  without  the 
limits  of  the  corporation.      [66  v.  214,  §  393.] 

( 1 )    §  2551  R.  S.  was  repealed  in  85  O.  L.  282. 


•      CEMETERIES.  729 

Sec.  2552  R.  S.  [Bond  of  managing  trustee.]  The  council 
may  "require  the  trustee  who  may  be  authorized  to  receive  and 
disburse  the  moneys  arising  from  the  sale  of  lots,  or  otherwise, 
and  to  invest,  manage,  and  control  the  property  and  funds  in 
the  hands  of  said  trustees,  to  enter  into  a  bond  to  the  corpora- 
tion with  sufficient  sureties,  conditioned  for  the  faithful  per- 
formance of  his  duty,  as  such  trustee,  and  account  for  all 
moneys  by  him  received,  and  pay  over  to  his  successor  all 
moneys  or  other  property  unexpended.  And  such  bond  shall 
be  filed  in  the  office  of  the  corporation  clerk.  [1887,  March 
16:  84  v.  84;  Rev.  Stat.  1880;  66  v.  214,  §  395.] 

Sec.  2553  R.  S.  [Applicability  to  existing  cemeteries.]  The 
provisions  of  this  chapter  relating  to  the  establishment  of  cem- 
eteries by  municipal  corporations  and  township  trustees,  shall 
govern  cemeteries  already  so  established,  so  far  as  the  same 
may  be  applicable.      [66  v.  214,  §  396.] 

Sec.  2554  R.  S.  [Property  in  village  supporting  cemetery  ex- 
empt from  tax  for  purchase  of  hearse  for  township.]  All  property 
within  any  village,  in  which  there  is  a  cemetery  established  and 
maintained  by  such  village,  shall  be  exempt  from  taxes  for  the 
purchase  or  maintenance  of  cemeteries,  or  for  the  purchase  of  a 
hearse,  or  for  the  construction  of  a  vault,  under  the  superintend- 
ence of  the  township  trustees,  and  for  the  use  of  the  township  ex- 
clusive of  the  village.  [1880,  April  2 :  77  v.  117;  Rev.  Stat. 
1880;  66  v.  74,  §  1.] 

Sec.  2555  R.  S.  [Conveyance  of  lands  abandoned  for  cemetery 
purposes.]  When  a  city  or  village  holds  any  land  or  lands 
within  its  limits  which  shall  have  been  used  as  a  cemetery  or 
burial-ground,  and  in  which  interments  have  been  prohibited 
by  such  municipal  corporations,  and  it  shall  have  been  decided 
to  remove  the  bodies  interred  therein,  it  shall  be  lawful  for  the 
council  to  sell  or  otherwise  dispose  of  any  such  land  or  lands 
to  the  purchaser  of  the  same,  provided  that  such  sale  or  other 
transfer  of  such  land  shall  not  operate  to  give  such  purchaser 
possession  of  the  same  until  the  bodies  therein  interred  shall 
have  been  removed  from  such  cemetery,  and  all  monuments 
and  tombstones  be  removed  and  re-erected  at  the  place  of  re- 
interment of  the  remains  of  each  person,  respectively.  [68 
v.  124,  §  1.] 

Sec.  2556  R.  S.  [Council  of  villages  may  tax  for  hearse  or 
vault  on  vote  of  electors.]  The  council  of  a  village  may  levy  a 
tax  in  such  amount  as  it  may  determine,  either  to  purchase  a 
hearse  or  to  construct  a  vault  for  the  dead,  for  the  use  of  the 
village,  to  be  under  the  control  of  the  trustees  of  cemeteries  of 


730  THE    OHIO    MUNICIPAL    CODE. 

the  village,  where  there  is  such  board,  otherwise  under  the  con- 
trol of  the  council,  or  a  person  appointed  by  it ;  but  the  question 
of  levying  such  tax,  for  either  or  both  of  such  purposes,  and  the 
amount  asked  therefor,  shall  be  separately  submitted  to  the  elec- 
tors of  the  corporation,  at  a  general  election,  twenty  days'  notice 
thereof  having  been  previously  given,  by  posting  in  at  least 
three  public  places  in  the  village ;  the  notice  shall  state  specific- 
ally the  amount  to  be  raised,  and  for  what  purpose;  and  if  a 
majority  of  all  the  votes  cast  at  such  election  is  in  favor  of 
either  or  both  of  such  propositions,  the  same  shall  be  considered 
adopted,  and  the  tax  herein  provided  for  authorized.  [75  v. 
46,  §  1.] 

Sec*  2557  R.  S.  [Form  of  ballot.]  The  electors  voting  at 
such  election  shall  have  placed  on  their  ballots  the  words, 
"  Tax  for  Hearse  — Yes,"  or  "  Tax  for  Hearse  —  ~No,"  and 
upon  the  same  ballot,  "  Tax  for  Vault  — Yes,"  or  "  Tax  for 
Vault  —  No,"  and  may  vote  for  one  proposition  and  against 
the  other,  or  for  or  against  both.      [(75  v.  46,  §  2).] 

Sec.  2558  R.  S.  [Council  may  borrow  money  in  anticipation  of 
collection  of  tax.]  When  a  tax  for  erecting  a  vault  has  been 

voted  in  any  village,  the  council  thereof  may,  in  anticipation  of 
such  tax  issue  the  bonds  of  such  village  in  an  aggregate  amount 
not  exceeding  the  tax  voted,  of  denominations  not  less  than 
fifty  dollars,  bearing  interest  at  a  rate  not  exceeding  six  per 
centum,  payable  not  later  than  two  years  from  the  date  thereof, 
and  signed  by  the  mayor  and  clerk  of  the  village ;  and  such 
bonds  shall  be  paid  from  the  tax  so  voted,  and  the  proceeds 
of  the  sale  thereof  shall  be  used  solely  for  the  construction  of 
such  vault      [(76  v.  43,  §  1).] 

Sec.  1464a  R.  S.  [Use  of  land  near  dwelling-house  in  city  of 
third  or  fourth  grade,  second  class.]  Where  the  trustees  of 
any  township  own  land  for  cemetery  purposes,  situated  in  a 
city  of  the  third  or  fourth  grade  of  the  second  class,  they  may 
use  such  land  for  cemetery  purposes  within  one  hundred  (100) 
feet  or  the  width  of  a  street  from  any  dwelling-house  the  same 
as  cemetery  associations  are  now  authorized  to  do  by  section 
3773  [3573]  of  the  Revised  Statutes  of  Ohio,  as  amended 
March  22,  1893.      [92  v.  161.] 

Sec.  1473a  R.  S.  [Abandonment,  etc.,  of  graveyard,  etc.,  owned 
by  city  or  village,  in  certain  cases.]  That  where  any  grave- 
yard, burial-ground  or  cemetery  is  located  without  the  cor- 
porate limits  of  any  city  or  village,  and  not  further  away  there- 
from than  one  mile,  and  the  title  to  and  the  possession  of  such 
graveyard,  burial-ground  or  cemetery  is  in  such  city  or  village, 


CEMETERIES.  731 

or  the  same  is  under  the  control  of  any  of  the  authorities  of  any- 
city  or  village,  and  said  city  or  village  has  failed  to  protect  the 
same  or  keep  it  inclosed  with  fences  for  two  years,  any  five 
freeholders  whose  property  is  in  the  vicinity  of  such  graveyard, 
burial-ground  or  cemetery,  may  apply  by  petition  to  the  pro- 
bate court  of  the  county  where  such  graveyard,  burial-ground 
or  cemetery  is  located,  stating  in  their  petition  that  such  city 
or  village  has  failed  to  protect  such  graveyard,  burial-ground  or 
cemetery,  and  asking  for  an  abandonment  or  removal  of  such 
burial-ground,  graveyard  or  cemetery;  which  upon  final  hear- 
ing, if  it  appears  to  the  court  to  be  to  the  public  interest  to 
have  such  graveyard,  burial-ground  or  cemetery  abandoned  and 
removed,  it  shall  so  order.  In  which  action  such  city  or  village 
shall  be  made  a  defendant  and  shall  be  served  with  summons  as 
in  other  actions  provided.  Should  such  city  or  village  fail 
to  remove  such  graveyard,  burial-ground  or  cemetery  for  a 
period  of  six  months  after  it  has  been  so  ordered  by  the  court, 
then  the  court  shall  order  such  premises  sold  as  upon  execution ; 
provided,  that  such  sale  or  other  transfer  of  such  land  shall  not 
operate  to  give  a  purchaser  possession  of  the  same  until  the 
bodies  therein  interred  shall  have  been  removed,  as  provided 
in  section  2555  of  the  Kevised  Statutes  of  Ohio.      [89  v.  272.] 

Cemetery  Board  in  Villages. 

Sec.  2518.  [Appointment  of  board  of  cemetery  trustees;  number 
of  members,  term.]  The  mayor  of  any  village  owning  a  public 
burying  ground,  or  cemetery,  or  which  may  hereafter  be  pro- 
vided with  the  same,  shall  have  the  power  to  appoint  a  board 
to  be  known  as  the  board  of  cemetery  trustees;  said  board  of 
cemetery  trustees  shall  consist  of  three  members,  whose  term 
of  office  shall  be  three  years ;  provided,  however,  that  the  term 
of  office  of  any  such  board  first  appointed  in  any  village,  sub- 
sequent to  the  passage  of  this  act,  shall  extend  until  the  first 
municipal  election  has  been  held  thereafter  and  the  officers 
chosen  at  said  election  duly  qualified  and  placed  in  office. 
Thereafter  the  mayor  shall  appoint  a  board  whose  term  snail 
expire  as  follows:  One  trustee  for  a  term  of  three  years,  one 
trustee  for  a  term  of  two  years,  and  one  trustee  for  a  term  of 
one  year.  And  thereafter  each  year  after  the  annual  munic- 
ipal election  has  been  held  and  the  newly  elected  officers  have 
been  duly  qualified  and  placed  in  office  the  mayor  shall  at  the 
first  meeting  night  of  the  council  within  his  village  appoint 
one  member  on  the  board  of  cemetery  trustees  whose  term  of 


731a 


THE    OHIO    MUNICIPAL    CODE. 


office  shall  be  for  three  years,  or  until  his  successor  in  office 
shall  have  been  regularly  appointed  and  qualified. 

[Vacancies.]  In  case  a  vacancy  in  said  board  of  cemetery 
trustees  in  any  village  where  such  board  shall  have  been  ap- 
pointed, in  accordance  with  the  provisions  of  this  section,  by 
reason  of  the  death,  disability,  or  removal  from  office  of  any 
member  or  members  of  said  board,  the  mayor  shall  appoint  a 
member  or  members  to  fill  such  vacancies,  and  the  person  so 
appointed  shall  serve  out  the  unexpired  term  or  until  his  suc- 
cessor is  regularly  elected  and  qualified.  All  appointments  to 
fill  vacancies  as  aforesaid  shall  be  made  at  the  first  meeting 
night  of  the  council  after  such  vacancy  shall  have  been  brought 
to  the  attention  of  the  mayor  and  council. 

[Removals.]  The  mayor  of  any  village  where  such  board  of 
cemetery  trustees  is  appointed  in  accordance  with  the  provi- 
sions of  this  section  shall  have  power  to  remove  from  office  any 
member  of  said  board  for  any  misconduct,  neglect  of  duty  or 
malfeasance  in  office; 

[Powers  and  duties.]  said  board  of  cemetery  trustees  shall  have 
all  the  powers  and  perform  all  the  duties  prescribed  by  law  in 
this  chapter  for  such  trustees ;  and  said  board  shall  organize  in 
accordance  with  the  provisions  of  section  2533a  of  the  Revised 
Statutes  of  Ohio.  [Re-enacted  1904,  May  3,  97  v.  538;  66  v. 
210.] 


PUBLIC    BUILDINGS.  732 


XIV 

PUBLIC  BUILDINGS  AND  INSPECTION 
OF  BUILDINGS.1 


1.  CLEVELAND  CITY  HALL  COMMISSION. 

Sec.  2559 — 1  R.  S.  [Cleveland  may  erect  new  city  hall;  com- 
missioners; number;  appointment;  duties  and  powers.]  2  In  any 
city  of  the  second  grade  of  the  first  class,  the  council  of  such 
city  may,  by  ordinance,  declare  the  necessity  for  the  erection, 
completion  and  furnishing  of  a  new  city  hall  for  any  such  city, 
to  be  used  for  the  public  offices  of  the  corporation,  and  such 
other  public  purposes  as  the  council  may  authorize;  thereupon 
there  shall  be  a  board  of  five  commissioners,  composed  of  five 
(5)  citizens  of  such  city,  to  be  appointed  by  the  mayor,  and 
approved  by  the  council,  not  more  than  three  of  whom  shall 
be  from  the  same  political  party,  whose  duty  it  shall  be  to 
secure  the  necessary  land,  by  purchase  or  appropriation,  as  a 
location  and  site  for  the  erection  of  such  city  hall,  and  to  erect, 
build,  complete  and  furnish  such  new  city  hall  in  such  city ;  and 
upon  the  appointment  as  aforesaid  of  said  commissioners,  all 
power  to  procure  such  site  or  location,  either  by  appropriation 
or  purchase,  as  said  commissioners  shall  deem  best,  and  to 
erect,  build,  complete  and  furnish  a  city  hall  for  such  city,  shall 
devolve  upon,  vest  in,  and  be  exercised  by  said  board,  and  in 
exercising  such  power  and  carrying  out  the  object  of  their 
appointment,  said  board  shall  be  governed  by  the  following 
provisions.      [93  v.  549.] 

(1)    Sections  of  Revised  Statutes  ted  here.     Other  sections  not  given 

carried  here   formed   part  of  Chap.  here  are  repealed  by  the  Code. 

8,  Div.  8,  Title  XII.,  R.  S.    Of  the  (2)   Cleveland   city   hall    act.— 

sections  in  this  chapter,   §§   2573a,  §  216  of  the  Code  provides  that  per- 

2573a — 2,    2573b,    2573c,    2573c — 1,  sons  appointed  pursuant  to  this  act, 

2573c — 2,  2575c — 3,  2573a",  2573 — 1,  shall   continue  to  act  till  the  work 

2573 — 2,   and   2573 — 3  R.   S.   relate  is    complete    and    it    shall    then   be 

solely  to   state  inspection  of  work-  turned  over  to  proper  municipal  au- 

shops  and  factories,  and  are  omit-  thorities. 


733  THE    OHIO    MUNICIPAL    CODE. 

Sec.  2559 — 2R.  S.  [Name  of  board;  expenses,  removal,  va- 
cancy.] Said  board  shall  be  known  as  the  board  of  city  hall 
commissioners,  and  they  shall  receive  their  necessary  expenses 
in  attending  to  their  duties,  which  shall  be  paid  out  of  the  fund 
hereinafter  created  for  the  purpose  of  carrying  out  the  pro- 
visions of  this  act.  Said  board  shall  serve  until  the  building 
and  furnishing  of  such  city  hall  is  completed,  but  not  to  exceed 
five  years  and  nine  months  from  the  date  of  their  appointment ; 
provided,  the  mayor,  with  the  approval  of  the  council,  may 
remove  any  of  said  commissioners  for  misconduct  in  office,  and 
the  vacancy  thereby  created  shall  be  filled  in  the  same  manner 
and  from  the  same  political  party  as  the  original  appointment, 
and  all  vacancies  in  the  office  of  commissioner  shall  be  filled 
in  the  same  manner  from  the  same  political  party  as  the  orig- 
inal appointment.1      [1902,  May  6 :  95  v.  877 ;  93  v.  549.] 

(1)  This  section  is  given  as 
amended  May  6,  1902.  See  Code  § 
216    ( fourth  paragraph ) . 

Sec.  2559 — 3  R.  S.  [President;  meetings;  record.]  Said  com- 
missioners shall  select  from  their  number  a  president,  and  shall 
hold  regular  meetings  at  such  time  and  places  as  they  may  agree 
upon,  and  special  meetings  under  such  regulations  as  they 
may  determine,  and  shall  cause  to  be  kept  a  full  record  of  their 
proceedings.  Said  commissioners  shall  each  receive  the  sum 
of  five  dollars  per  meeting,  as  compensation,  for  each  and  every 
meeting  attended  by  them  from  and  after  the  passage  of  this 
amending  act,  but  in  no  case  shall  such  compensation  exceed 
twelve  hundred  dollars  in  any  one  year  to  any  member  of  said 
commission.1      [1902,  May  6 :  95  v.  877  ;  93  v.  549.] 

( 1 )  This  section  is  given  as 
amended  May  6,  1902.  See  Code  § 
216   (fourth  paragraph.) 

Sec.  2559 — 4R.  S.  [Power  to  appoint  clerk,  architect  and 
other  necessary  employes ;  compensation  of  same ;  to  adopt  suitable 
plan  for  hall;  contracts;  advertising  for  plans,  etc.]  Said  commis- 
sioners shall  have  power  to  appoint  a  clerk,  architect,  superin- 
tendent and  other  necessary  employes,  fix  their  compensation 
and  adopt  a  suitable  plan  and  design  for  such  city  hall,  and 
make  all  contracts  for  the  procuring  of  the  necessary  site,  and 
for  erecting,  completing  and  furnishing  such  city  hall;  and 
no  contract  which  they  enter  into,  or  alteration  or  modification 


PUBLIC    BUILDINGS.  734 

thereof  shall  be  valid  until  assented  to  at  a  regular  or  special 
meeting  and  concurred  in  by  a  majority  of  all  the  members 
thereof,  and  such  assent  entered  on  the  minutes  of  the  proceedr 
ings.  And  it  shall  be  the  duty  of  such  commissioners  in  se- 
curing the  most  suitable  -olans  together  with  the  specifications 
and  estimates  for  such  city  hall,  to  advertise  for  not  less  than 
three  (3)  consecutive  weeks  in  such  newspapers  as  they  may 
deem  proper,  in  and  of  general  circulation  in  such  city,  for 
plans,  specifications  and  estimates  of  such  city  hall ;  said  plans, 
specifications  and  estimates  to  be  presented  within  such 
time  after  such  advertisement  as  the  board  may  direct;  and 
shall  allow  full  and  fair  competition  among  all  architects  who 
shall  desire  to  submit  plans,  specifications  and  estimates  for 
such  city  hall.      [93  v.  550.] 

Sec.  2559 — 5R.  S.  [Power  to  condemn  property;  resolution 
therefor;  duty  of  corporation  counsel;  appropriation  proceedings 
governed  by  what  laws.]  Said  board  of  commissioners  shall 
have  power  to  appropriate,  enter  upon  and  condemn  for  public 
use,  by  any  such  city,  for  city  hall  purposes,  any  private  prop- 
erty within  such  city,  and  when  such  board  shall  determine 
to  appropriate  property  for  such  use  a  resolution  to  that  effect 
shall  be  passed  by  the  board  and  entered  upon  its  minutes, 
declaring  the  intention  to  appropriate  such  property  and  the 
necessity  therefor,  with  a  pertinent  description  of  the  property 
to  be  appropriated,  which  resolution  shall  be  certified  to  the 
corporation  counsel  of  such  city,  whose  duty  it  shall  then  be 
to  apply,  in  writing,  in  the  name  of  such  city,  to  any  court 
of  competent  jurisdiction  for  the  impaneling  of  a  jury  to  assess 
the  compensation  to  be  allowed  the  owner  or  owners  of  property 
sought  to  be  appropriated,  in  the  manner  now  provided  by  law 
for  the  impaneling  of  juries  to  assess  the  compensation  to  be 
allowed  the  owners  of  property  appropriated  by  municipal 
corporations  for  other  purposes;  and  such  appropriation  pro- 
ceedings shall  in  all  other  respects  be  governed  by  the  laws  now 
in  force  governing  the  appropriation  of  private  property  by 
municipal  corporations  for  public  purposes.      [93  v.  550.] 

Sec.  2559 — 6  R.  S.  [How  money  may  be  expended ;  commis- 
sioners or  city  employes  not  to  be  interested  in  contracts.]  No 
money  shall  be  expended  on  account  of  such  city  hall  unless 
first  authorized  by  such  commissioners,  and  upon  warrants 
signed  by  their  president  and  clerk,  drawn  upon  the  director  of 
accounts  of  such  city,  to  be  paid  by  the  treasurer  of  such  city 
upon  the  warrant  of  such  director,  out  of  the  fund  hereinafter 
provided ;  and  no  commissioner  or  person  holding  appointment 


735  THE    OHIO    MUNICIPAL    CODE. 

from  said  board,  nor  any  officer  or  employe  of  the  city,  shall 
be  interested,  either  directly  or  indirectly,  in  any  contract  con; 
cerning  such  city  hall  or  the  material  or  site  therefor.      [93 

v.  551.] 

Sec.  2559 — 7  R.  S.  [Plans  and  specifications,  etc.,  to  be  pre- 
pared; distribution  of  same.]  Such  commissioners  before  en- 
tering into  any  contract  for  such  city  hall  shall  cause  plans  and 
specifications,  details,  drawings,  and  forms  of  bids  to  be  pre- 
pared, and  when  adopted  by  them,  they  may,  in  their  discretion, 
cause  the  plans  and  drawings  to  be  lithographed,  and  the  speci- 
fications and  forms  of  bids,  contracts  and  bonds  to  be  prepared, 
and  have  the  same  printed  for  distribution  among  the  bidders. 
[93  v.  151.] 

Sec.  2559 — 8  R.  S.  [How  contracts  to  be  made ;  alterations  or 
modifications  in  contract.]  All  contracts  shall  be  made  in  writ- 
ing, in  the  name  of  such  city,  and  signed  by  the  president  and 
clerk  of  said  board,  and  by  the  contractor,  and  be  approved  by 
the  corporation  counsel.  When  it  becomes  necessary,  in  the 
opinion  of  said  board,  in  the  prosecution  of  the  work,  to  make 
alterations  or  modifications  in  the  contract,  such  alterations  or 
modifications  shall  only  be  made  by  order  of  the  board,  and 
such  order  shall  be  of  no  effect  until  the  price  to  be  paid  for 
the  work,  or  materials,  under  such  altered  or  modified  contract 
has  been  agreed  upon  in  writing,  and  signed  by  the  contractor 
and  the  president  of  said  board.      [93  v.  551.] 

Sec.  2559— 9  R.  S.  [Advertising  for  bids.]  Said  board  shall 
not  enter  into  any  contract  for  work  in  the  erection  and  com- 
pletion of  such  city  hall  without  first  causing  fifteen  (15)  days' 
notice  to  be  given  in  one  or  more  newspapers,  of  general  circu- 
lation, in  such  city,  for  sealed  proposals  for  doing  the  work 
and  furnishing  the  materials  therefor ;  provided,  that  said  board 
shall  not  be  required  to  advertise  for  bids  for  making  and 
printing  the  drawings,  specifications  and  forms  of  bids,  con- 
tracts and  bonds.      [93  v.  551.] 

Sec.  2559— 10  R.  S.  [Bids.]  All  bids  shall  be  enclosed  in  a 
sealed  envelope  and  deposited  with  the  clerk  of  said  board; 
and  such  sealed  envelope  shall  have  endorsed  thereon  the  nature 
of  the  same,  and  the  name  of  the  bidder;  and  all  bids  shall  be 
opened  at  a  regular  meeting  of  the  board,  and  at  an  hour  to 
be  indicated  in  said  notice.  Each  bid  shall  be  accompanied 
with  a  bond,  signed  with  sufficient  sureties,  for  the  acceptance 
and  execution  of  the  contract,  and  the  securing  of  the  same  if 
awarded  by  the  board;  or  the  bidder  may  deposit  with  the 


PUBLIC    BUILDINGS.  736 

board,  in  lieu  of  such  bond,  a  certified  check,  or  cash,  in  such 
sum  as  the  board  shall  indicate ;  and  in  case  of  refusal  of  the 
bidder  to  enter  into  a  contract  in  accordance  with  his  bid,  and 
furnish  the  security  therein  required,  within  such  reasonable 
time  as  the  board  may  determine,  said  bond  shall  be  put  in  suit 
and  the  amount  collected,  paid  into  the  fund  hereinafter  pro- 
vided for;  if  a  check,  or  cash,  is  deposited  the  amount  shall 
immediately  be  paid  into  such  fund.      [93  v.  551.] 

Sec.  2559 — 11  R.  S.  [Awarding  of  contract;  bond  of  successful 
bidder.]  Said  board  shall  enter  into  contract  with  the  lowest 
and  best  bidder,  upon  his  giving  bond  to  such  city  with  such 
sureties  as  the  board  shall  approve  that  he  will  perform  the 
work  and  furnish  the  materials  in  accordance  with  his  contract, 
and  that  the  sureties  agree  in  advance  to  such  modifications 
and  alterations  as  may  be  made  by  the  board  and  the  contractor, 
within  the  limits  of  the  penal  sum  mentioned  in  the  bond ;  and 
on  failure  of  such  bidder,  within  a  reasonable  time  to  be  fixed 
by  the  board,  to  enter  into  bond  with  the  sureties  before  pro- 
vided, a  contract  may  be  made  with  the  next  lowest  and  best 
bidder,  and  so  on,  until  a  contract  is  effected  with  a  contractor 
giving  bond  as  aforesaid ;  provided,  that  the  board  may  let  the 
work  in  whole  or  in  parts,  and  may  receive  bids  for  labor  and 
material  separately,  as  they  may  deem  best,  and  may  reject  any 
and  all  bids.      [93  v.  551.] 

Sec.  2559— 12  R.  S.  [Fund  to  defray  cost  of  city  hall;  bonds 
to  conform  to  requirements  of  certain  statutes.]  To  provide  a 
fund  to  pay  the  cost  and  expense  of  procuring  the  necessary 
land  as  a  location  for,  and  the  erection,  completion  and  furnish- 
ing of  such  city  hall,  under  the  provisions  of  this  act,  the  coun- 
cil of  any  such  city  may  and  it  is  hereby  authorized  to  issue  and 
sell  the  bonds  of  such  city  to  an  amount  not  to  exceed  in  the 
aggregate  one  million  five  hundred  thousand  dollars  for  pro- 
curing such  land  and  erecting,  completing  and  furnishing  such 
city  hall.  Said  bonds  shall  be  issued  and  made  payable  at  such 
time  or  times  and  shall  bear  interest  at  such  rate  not  to  exceed 
four  per  cent,  per  annum,  payable  semi-annually,  as  the  council 
of  such  city  shall  determine ;  said  bonds,  except  as  provided  in 
the  foregoing,  shall  in  all  respects  conform  to  the  requirements 
of  chapter  2,  division  9,  title  12  of  the  Kevised  Statutes  of 
Ohio,1      [May  6,  1902:  95  v.  877;  93  v.  549.] 

( 1 )  This  section  is  given  as 
amended  May  6,  1902.  See  Code  § 
216   (fourth  paragraph). 


737  THE    OHIO    MUNICIPAL    CODE. 

Sec.  2559 — 13  R.  S.  [Fund  to  pay  interest  on  bonds  and  bonds 
themselves  at  maturity.]  For  the  purpose  of  paying  the  interest 
on  said  bonds,  and  for  the  further  purpose  of  providing  a 
fund  for  the  payment  of  such  bonds  at  maturity,  the  council  of 
such  city  may  use  and  apply  any  money  received  by  such  city 
from  any  gas  company  or  electric  light  company  under  any 
agreement  heretofore  or  hereafter  made ;  and  for  the  purpose 
of  providing  such  further  sum  as  may  be  necessary  to  pay  the 
interest  on  such  bonds  and  the  principal  of  the  same  at  ma- 
turity, the  council  shall,  in  addition  to  the  other  levies  author- 
ized by  law,  levy  annually  a  sufficient  tax  therefor  on  all  prop- 
erty of  such  city  subject  to  taxation,  and  such  taxes  shall  be 
levied  and  collected  as  other  taxes.      [93  v.  552.] 


2.  CLEVELAND  GKOUP  PLAN  FOR  PUBLIC  BUILD- 
INGS. 

An  act  to  create  a  board  of  supervision  in  the  erection  simulta- 
neously of  public  municipal  and  county  buildings.  * 

[§  1.]  That  whenever  any  city  in  the  state  of  Ohio,  having 
a  population  of  more,  than  380,000,  or  the  county  in  which  the 
city  is  located,  contemplates  the  erection  of  buildings  for  public, 
municipal,  or  county  purposes  within  the  boundaries  of  such 
city,  such  city  by  its  council  may  request  the  governor  of  the 
state  of  Ohio  to  appoint  a  board  of  supervision  composed  of 
three  experts,  two  at  least  of  whom  shall  be  architects,  the  mem- 
bers of  which  board  shall  receive  salaries  not  exceeding  five 
thousand  dollars  each  per  annum,  to  be  fixed  by  the  city  author- 
ities prior  to  making  request,  upon  the  governor  for  appoint- 
ment, and  paid  by  the  city  requesting  such  appointment. 

[§  2.]  Such  board  when  appointed  shall  have  the  super- 
vision and  control  of  the  location  of  all  public,  municipal  or 
county  buildings  to  be  erected  upon  ground  previously  ac- 
quired within  the  limits  of  the  city,  and  shall  have  control  of  the 
size,  height,  style  and  general  appearance  of  all  such  buildings, 
for  the  purpose  of  procuring,  in  their  location  and  erection, 
the  greatest  degree  of  usefulness,  safety  and  beauty. 

[§  3.]  No  plans  shall  be  adopted  and  no  work  carried  on 
by  such  city  or  county,  wherein  such  board  shall  be  appointed, 
in  the  erection  of  such  public,  municipal  or  county  buildings 
within  the  boundaries  of  such  city,  until  all  plans,  specifications 
and  locations  shall  have  first  been  submitted  to  and  approved 
by  such  board  or  a  majority  thereof. 

[§  4.]  Such  board  shall  be  appointed  for  such  time  as 
shall  be  requested' by  the  city,   and  the  governor,   at  the  re 


PUBLIC    BUILDINGS. 


737a 


quest  of  the  city,  may  remove  any  member  of  such  board  and 
appoint  a  new  member  to  fill  the  vacancy  thus  created,  if  in 
his  judgment  it  is  wise  so  to  do.      [May  6,  1902,  95  v.  879.] 

(1)   See  §  216  of  the  Code. 

3,    JOINT  VILLAGE  AND  TOWNSHIP  BUILDING. 

An  act  to  provide  for  village  and  township  to  jointly  enlarge, 
improve  or  erect  a  public  building. 

[Sec.  1.]  [Village  and  township  may  jointly  enlarge,  improve 
or  erect  public  building.]  That  the  electors  of  an  incorporated 
village  and  the  electors  of  the  township  in  which  the  village 
is  situated,  may  if  both  so  determine,  as  herein  after  provided, 
unite  in  the  enlargement,  improvement  or  erection  of  a  public 
building 

[Sec.  2.]  [Application  to  mayor  and  township  trustees.] 
vviisnever  the  electors  of  a  village  and  township  in  which  said 
village  is  situated  desire  to  jointly  enlarge,  improve  or  erect 
a  public  building,  application  shall  be  made  to  the  mayor  of 
the  village,  signed  by  not  less  than  twenty-five  resident  free- 
holders of  said  village,  and  an  application  shall  also  be  made  to 
the  township  trustees  of  said  township,  signed  by  not  less  than 
twenty-five  resident  freeholders  of  said  township,  who  are  not 
residents  of  said  village. 

[Sec.  3.]  [Submission  of  question  of  tax  to  a  vote.]  At  the 
next  general  municipal  and  township  election  after  said  appli- 
cations have  been  filed  with  the  mayor  of  said  village  and 
trustees  of  said  township  as  provided  herein,  the  question  as  to 
whether  or  not  a  tax  shall  be  levied  upon  all  the  property  sub- 
ject to  taxation  in  said  village  and  township  for  the  enlarge- 
ment, improvement  or  erection  of  a  public  building,  shall  be 
submitted  to  the  electors  of  said  village  and  said  township :  Pro- 
vided, however,  that  ten  days'  notice  that  said  question  will 
be  submitted  to  the  electors,  shall  be  given,  by  the  mayor  of 
the  village  and  the  trustees  of  the  township,  in  some  news- 
paper of  general  circulation  in  said  village  and  township; 
which  notice  shall  state  the  maximum  amount  of  money  pro- 
posed to  be  used  in  the  enlargement,  improvement  or  erection 
of  said  public  building  and  the  rate  of  tax  proposed  to  be  levied. 

[Sec.  4.]  [Vote  required.]  If  at  such  election  two-thirds  of 
the  electors  of  said  village  and  township  voting,  vote  in  favor 
of  said  improvement,  the  council  of  said  village  and  the  trus- 
tees  of   said   township   shall   jointly   take   such   action   as   is 


738  THE    OHIO    MUNICIPAL    CODE.y 

necessary  to  carry  out  the  improvement  contemplated.      [1904, 
April  26,  97  v.  483.] 

4.     LEASING  PUBLIC  HALLS. 

Sec.  2566 U.S.  [Leasing  hall,  or  part  thereof.]  When  there 
is  a  publie  hall,  erected  by  taxation,  in  any  city  of  the  second 
class  or  village,  and  the  building  or  any  part  thereof  may  not 
be  needed  for  public  business  the  council  shall  lease  the  building 
or  part  thereof,  as  the  case  may  be,  for  private  offices,  lectures, 
or  like  purposes,  and  for  such  length  of  time,  and  upon  such 
terms  as  shall  seem  to  it  proper,  and  the  money  received  for 
rents  shall  be  forthwith  paid  into  the  treasury  of  the  munici- 
pal corporation ;  and  when  a  municipal  corporation  and  a  town- 
ship have  united  in  erecting  such  hall  as  aforesaid,  they  shall 
jointly  have  the  same  power  to  lease  as  above  provided,  and 
the  amount  received  shall  be  divided  equitably  by  the  council 
and  the  township  trustees,  and  the  amount  belonging  to  the 
municipal  corporation  shall  be  paid  by  the  party  receiving  it, 
into  the  corporation  treasury,  and  the  amount  belonging  to  the 
township  shall  be  paid  by  such  trustees  into  the  township 
treasury.1      [70  v.  55,  §  1.] 

(1)  Effect  on  taxation.  —  part  so  rented  or  leased  is  subject 
Where  at  municipality  rents  or  to  taxation.  Seott  v.  Athens,  1  N. 
leases  a  part  of  a  public  hall,  the      P.  94. 

Sec.  2567  R.  S.  [Collection  of  rent,  when  used  for  certain  pur- 
poses.] Whenever  any  such  hall  building,  in  whole  or  in 
part  thereof,  or  any  room  or  rooms,  or  parts  of  rooms  therein 
shall  be  used  or  occupied  by  any  city,  village,  or  township 
officer,  or  by  a  justice  of  the  peace,  or  by  any  mayor  of  the 
city  or  village,  for  the  transaction  of  any  other  business  than 
that  required  in  the  administration  of  public  affairs,  either  by 
himself,  or  partner  in  business,  it  shall  be  the  duty  of  the 
trustees  of  such  township  or  council  of  such  city  or  village,  or 
of  the  council  and  trustees,  acting  together,  as  the  case  may 
be,  to  collect  from  such  public  officer  or  parties  in  business, 
such  sum  for  rent  as  may  be  just  and  equitable.  [70  v.  55, 
§2.] 

An  act  to  authorize  the  councils  of  municipal  corporations  to 
permit  the  use  of  public  buildings  under  their  control. 

[Sec.  1.]  [Council  may  permit  use  of  public  buildings.]  That 
the  councils  of  municipal  corporations  are  hereby  authorized 
to  permit  the  use  of  public  buildings  under  their  control  upon 
such  terms  and  conditions  as  they  may  by  ordinance  provide. 
T1904,  April  23,  97  v.  278.] 


INSPECTION    OF    BUILDINGS.  739 

5.   INSPECTION  OF  BUILDINGS. 

Sec.  2568  K.  S.  [Examination  of  public  hall,  etc.,  as  to  safety 
in  case  of  fire.]  On  application  of  the  owner  or  person  having 
control  of  an  opera  house,  hall,  theater,  church,  schoolhouse, 
hospital,  medical  institute,  asylum,  or  other  buildings  used  for 
public  assemblages,  in  any  municipal  corporation,  the  mayor, 
civil  engineer,  and  chief  engineer  of  the  fire  department,  or  if 
such  corporation  has  no  such  engineer,  the  mayor  and  two 
members  of  council,  shall  carefully  make  a  joint  examination 
of  such  opera  house,  hall,  theater,  church,  schoolhouse,  hospital, 
medical  institute,  asylum,  or  other  building  to  ascertain  the 
means  provided  thereat  and  therein  for  the  speedy  and  safe 
egress  of  the  persons  that  may  at  any  time  be  there  assembled, 
and  the  means  provided  for  extinguishing  a  fire,  at  or  in  such 
place ;  provided,  that  when  the  assembly  rooms  of  such  church 
are  situated  upon  the  ground  floor,  with  a  sufficient  number  of 
low  windows,  in  the  opinion  of  the  commission  above  provided 
for,  to  secure  safe  and  yeas  [easy]  means  of  escape  in  case  of 
alarm,  they  shall  grant  the  certificate  mentioned  in  the  next 
following  section.1  [90  v.  3 ;  62  v.  139,  §  3 ;  74  v.  61,  §  1 ;  S. 
&  S.  636.] 

( 1 )  Power  of  municipality  to  see  paragraph  13,  §  7  of  the  Code, 
provide  for  inspection  of  buildings,      p.  52. 

Sec.  2569  R.  S.  [Certificate  in  such  case.]  If,  upon  such  ex- 
amination, it  is  found  that  such  opera  house,  hall,  theater, 
church,  schoolhouse,  or  other  building  is  abundantly  provided 
with  means  for  speedy  and  safe  egress  of  the  persons  who 
may  at  any  time  be  there  assembled,  and,  if  above  the  first 
floor,  that  it  is  provided  therein  with  water  or  other  equally 
efficient  agency,  and  proper  means  to  apply  it,  so  that  any  fire 
which  may  occur  at  such  place  can  be  immediately  extinguished, 
the  mayor  and  persons  so  acting  with  him,  or  a  majority  of  the 
three,  shall  issue  to  such  owner  or  person  having  control  as 
aforesaid,  a  certificate  of  the  fact,  which  shall  continue  in 
force  one  vear,  unless  sooner  revoked  by  council.  [62  v.  139, 
§  3;  S.  &  S.  636.] 

Sec.  2570  R.  S.  [Re-examination  in  case  of  change  in  build- 
ing".] If  any  change  or  alteration  is  made  in  such  building,  the 
owner  or  person  having  charge  of  it  shall  notify  the  mayor  of 
the  fact,  who  shall  cause  to  be  made  a  re-examination  in  all 
respects  like  that  provided  for  in  the  last  section,  and  if  upon 
such  examination  such  owner,  or  person  having  control,  is  en- 
titled to  such  certificate  as  is  mentioned  in  the  last  section,  it 


740  THE    OHIO    MUNICIPAL    CODE. 

shall  be  issued  to  him,  with  like  effect.  [6.2  v.  139,  §  3 ;  S.  & 
S.  636.] 

Sec.  2571  E.  S.  [Appeal  of  owner  or  person  in  control  from 
refusal  to  issue  certificate.]  If  any  owner  or  person  having 
control  of  such  place,  as  aforesaid,  shall  feel  himself  aggrieved 
by  the  refusal  of  such  officers  to  issue  any  such  certificate,  he 
may  appeal  from  the  decision  to  the  council,  which  shall  ap- 
point three  disinterested  persons  to  examine  the  premises,  any 
two  of  whom  may  issue  the  certificate  provided  for  in  sections 
two  thousand  five  hundred  and  sixty-nine  and  two  thousand  five 
hundred  and  seventy.      [62  v.  139,  §  3 ;  S.  &  S.  636.] 

Sec.  2572  R.  S.  [Penalties  against  owner  or  person  having  con- 
trol.] Whoever,  being  the  owner  or  having  control  as  an  officer, 
agent,  or  otherwise,  of  any  opera  house,  hall,  theater,  church, 
schoolhouse,  college,  academy,  seminary,  infirmary,  sanitarium, 
children's  home,  hospital,  medical  institute,  asylum,  or  other 
building  used  for  the  assemblage  or  betterment  of  people,  in  a 
municipal  corporation,  county  or  township  in  the  state  of  Ohio, 
permits  it  to  be  used  when  any  door  affording  exit  therefrom 
is  locked  or  barred,  or  opens  inwardly;  when  the  place  is  not 
provided  with  ample  means  for  the  safe  and  speedy  egress 
of  the  persons  who  may  be  there  assembled ;  when  sufficient 
water  and  proper  means  to  apply  it,  or  other  efficient  means  are 
not  provided  on  each  floor  to  extinguish  any  fire  which  may 
occur  therein ;  or  when  the  certificate  provided  for  in  section 
twenty-five  hundred  and  sixty-nine  or  section  twenty-fiva  hun- 
dred and  seventy,  which  certificate  shall  also  apply  to  holdings 
mentioned  in  section  twenty-five  hundred  and  seventy -two,  as 
the  case  may  be,  has  not  been  issued,  or  is  not  in  full  force,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  on  conviction  thereof 
before  any  court  of  competent  jurisdiction  shall  be  lined  not 
more  than  five  hundred  (500)  dollars,  nor  less  than  fifty  (50) 
dollars,  and  ten  (10)  dollars  additional  for  each  day  or  night 
such  building  is  permitted  to  be  used  after  such  conviction  is 
had  until  such  changes,  alterations  or  additions  have  been  made 
sufficient  to  warrant  the  issuing  of  certificate  by  the  chief 
inspector  of  workshops  and  factories ; 

[Fines  for  benefit  of  city  or  county.]  And  such  fines  and 
costs  shall  be  recovered  in  the  name  and  for  the  use  uf  the  mu- 
nicipal corporation,  if  such  building  is  located  within  the  cor- 
porate limits,  if  not  then  for  the  use  of  the  county  in  which 
located  and  suit  is  brought ; 

[Duty  of  mayor  or  prosecuting  attorney.]  And  it  shall  be  the 
duty  of  the  mayor,  with  the  aid  of  the  police,  or  the  prosecuting 


INSPECTION    OF    BUILDINGS.  741 

attorney,  with  the  aid  of  the  sheriff,  if  such  building  is  not  lo- 
cated within  a  municipal  corporation,  to  see  that  the  provisions 
of  this  act  are  strictly  enforced.  [93  v.  34;  92  v.  408;  90  v. 
4;  62  v.  139,  §  3  (§  4)  ;  S.  &  S.  636.] 

Sec.  2572a  R.  S.  [Inspections  and  certificates  dispensed  with,  in 
certain  cases;  notice  of  refusal;  requirements  for  the  issuing  of 
certificates,  etc.]  That  whenever  any  structure  referred  to  in 
section  2572  shall  have  been  inspected  by  the  state  inspector  of 
workshops  and  factories,  and  such  inspector  shall  have  issued  to 
the  owner  thereof  or  to  his  agent,  a  certificate  that  such  struc- 
ture is  properly  arranged  for  the  safe  and  speedy  egress  of  per- 
sons who  may  be  assembled  therein,  and  also  properly  provided 
with  the  means  for  the  extinguishment  of  fire  at  or  in  such 
structures,  as  now  required  by  law,  then  such  certificate  shall 
dispense  with  other  inspections  and  certificates  required  by 
law  in  regard  to  the  safety  of  such  structures  as  are  mentioned 
in  section  twenty-five  hundred  and  seventy-two ;  and  in  case  such 
inspector  shall  find  on  [no]  inspection  that  such  structure  is  not 
properly  arranged  for  the  safe  and  speedy  egress  of  persons  who 
may  be  there  assembled,  or  not  properly  provided  with  means 
for  the  extinguishment  of  fire  at  or  in  such  structure,  as  now  re- 
quired by  law,  or  that  such  structure  is  such  as  to  endanger 
the  lives  of  the  persons  who  may  be  there  assembled,  from  fire 
or  other  cause,  he  shall  notify  the  owner,  officer  or  agent  in 
charge  of  such  structure  and  the  mayor  of  the  municipal  cor- 
poration, if  such  structure  is  located  therein,  if  not  then  the 
prosecuting  attorney  of  the  county  wherein  the  same  is  located, 
in  writing,  of  the  fact  that  he  refuses  such  certificate,  specifying 
his  reasons  and  the  alterations,  additions  and  appliances  neces- 
sary to  be  made  and  furnished  before  a  certificate  will  be  issued ; 
and  no  certificate  required  by  law,  in  regard  to  the  safety  of 
such  structure,  shall  be  issued  by  the  mayor  or  any  officer  or 
person  under  any  provision  of  the  law  till  the  requirements  of 
the  foregoing  notice  are  complied  with  to  the  satisfaction  of  the 
state  inspector,  and  it  shall  be  the  duty  of  the  mayor  of  any 
municipality,  with  the  aid  of  the  police,  or  the  prosecuting  at- 
torney, with  the  aid  of  the  sheriff,  upon  receiving  such  notifica- 
tion, to  prohibit  the  use  of  such  buildings  for  the  assemblage  of 
people  until  the  necessary  changes,  alterations  and  additions 
have  been  made  and  the  inspector's  certificate  has  been  issued. 
[92  v.  409;  90  v.  4;  88  v.  85;  86  v.  46.] 

Sec.  2572b  R.  S.  [When  inspections  to  be  made.]  It  shall  be 
the  duty  of  the  chief  inspector  *  of  workshops  and  factories,  or 
his    district    inspectors,    to    make    inspection    of   such    build- 


742  THE    OHIO    MUNICIPAL    CODE. 

ings  as  are  provided  for  in  sections  2568,  2569  and  2572  of  the 
Revised  Statutes  of  Ohio,  as  often  as  he  may  deem  necessary, 
or  upon  the  written  demand  of  the  agent  or  owner  of  such  struc- 
ture, or  upon  the  written  request  of  five  or  more  citizens  of  the 
municipal  corporation,  county  or  township  wherein  such  struc- 
ture is  located, 

[Inspector  to  have  access  to  buildings.]        and  the  chief  in- 
spector or  district,  inspectors  shall  have  access  to  all  such  build- 
ings at  any  time  it  may  be  deemed  necessary  to  inspect  same.2 
[93  v.  35 ;  92  v.  409 ;  87  v.  279 ;  86  v.  46,  47.] 

(1)    Duties  of  inspector. —  It  is  v.  Commissioners  of  Ottawa  Co.,  5 

no   part   of   the   duties   of   building  N.  P.,  260,  262. 

inspectors  to  see  that  the  funds  and  (2)    Purpose     of     inspection. 

records    are    placed    in    what    they  The  purpose  of  these  statutes  is  to 

regard  as  a  safe  and  suitable  build-  insure    safe    buildings    for    the    as- 

ing  for  that  purpose.     State  ex  rel.  semblages  of  the  people.     lb. 

Sec.  2573  R.  S.  [Duties  of  factory-men,  hotel-keepers,  etc.,  as 
to  fire-escapes.]  l  It  shall  be  the  duty  of  any  owner  2  or  agent 
for  owner  of  any  factory,  workship,  tenement  house,3  inn,  or 
public  house,  if  such  factory,  workshop,  tenement  house,  inn, 
or  public  house  be  more  than  two  stories  high,4  to  provide  a 
convenient  exit  from  the  different  upper  stories  of  said  build- 
ing, which  shall  be  easily  accessible  in  case  of  fire,  and  any 
owner  or  person  having  control  of  any  such  inn  or  public  house 
where  travelers  or  boarders  are  lodged  in  any  story  above  the 
second  story  of  the  building,  shall  also  provide  a  good  rope  or 
other  life  line  for  each  sleeping  room  -for  guests  in  such  stories.5 
[1883,  April  19 :  80  v.  187 ;  Kev.  Stat.  1880 ;  74  v.  176,  §  1.] 


(1)  Section  not  limited  to  mu=  requires  a  fire  escape  from  the  sec- 
nicipality. —  This  section  is  not  ond  as  well  as  the  higher  stories, 
confined  to  buildings  in  municipali-  Rose  v.  King,  49  O.  S.  213. 

ties.     Rose  v.  King,  49  O.  S.  213.  (5)    Exercise   of    police  power. 

(2)  Meaning  of  "owner." —  — A  statute  requiring  fire  escapes 
Does  not  mean  owner  of  the  fee,  but  on  certain  buildings  and  on  failure 
owner  of  the  factory.  Lee  v.  Smith,  to  erect  them,  providing  a  punish- 
42  O.   S.  458.  merit  by  fine  and  an  injunction  to 

(3)  Tenement  house  defined.  enjoin  use  of  building,  is  but  an 
—  See  Rose  v.  King,  49  O.  S.  213.  exercise    of    police    power.      Cincin- 

(4)  More   than   two   stories. —  nati  v.  Steinkamp,  54  O.  S.  284. 
A  building  more   than  two   stories 


INSPECTION    OF   BUILDINGS.  743 

Sec.  2574  R.  S.  [Duty  of  mayor  to  require  such  escapes;  pen- 
alty for  failure  to  comply.]  It  shall  be  the  duty  of  the  mayor 
of  each  city  or  village  to  require  the  owner  or  agent  for  owner 
of  any  factory,  workshop,  tenement  house,  or  inn  or  public 
house,  within  the  meaning  of  the  next  preceding  section,1  to 
comply  with  the  requirements  of  said  section  within  sixty  days 
from  the  serving  of  a  notice  by  the  mayor  so  to  do,2  unless  such 
owner  or  agent  for  owner  shall  have  previously  complied  with 
the  requirements  of  said  preceding  section,  and  if  any  such 
owner  or  agent  of  owner  neglects  or  refuses  to  comply  with  the 
requirements  of  the  next  preceding  section  within  the  time 
specified  in  said  notice,  he  shall  forfeit  not  less  than  fifty 
nor  more  than  three  hundred  dollars  for  each  and  every  month 
he  so  fails  to  comply  therewith,  the  amounts  so  forfeited  to 
be  recovered  in  the  name  of  and  for  the  use  of  such  city  or 
village  in  an  action  in  the  police  court  or  other  competent  tribu- 
nal; such  owner  or  agent  for  owner  may  also  be  held  for 
civil  damages  to  the  party  injured.  [1883,  April  19 :  80 
v.  187,  188 ;  Eev.  Stat.  1880 ;  74  v.  176,  §  2 ;  76  v.  33,  §  1.] 

(1)  This  refers  to  §  2573  R.  S.,  recovering  from  owner  of  tenement 
wpra.  house  for  injuries  received  through 

(2)  Effect  of  failure  to  give  neglect  to  comply  with  §  2573  R.  S. 
notice. —  Failure  of  mayor  to  give  Rose  v.  King,  49  O.  S.  213. 

notice  does  not  prevent  tenant  from 

Sec.  2575  R.  S.  [Mayor,  etc.,  to  examine  building  once  a  year; 
compensation.]  It  shall  be  the  duty  of  the  mayor  of  such  city 
or  village,  personally,  or  by  the  marshal  or  head  of  police  of 
such  city  or  village,  or  other  proper  person  whom  the  mayor 
may  appoint  acting  under  the  direction  of  the  mayor,  as  in- 
spectors of  fire-escapes  to  carefully  examine  such  factories, 
workshops,  tenement  houses,  inns  or  public  houses  once  in  each 
year,  and  report  all  violations  of  the  provisions  of  sections 
twenty-five  hundred  and  seventy-three  and  twenty-five  hundred 
and  seventy- four  to  the  council  of  such  city  or  village,  when  pro- 
ceedings shall  be  commenced,  without  unnecessary  delay,  against 
the  person  so  offending,  and  said  mayor,  marshal,  or  head  of 
police,  or  person  so  appointed  by  the  mayor  to  act  as  inspector  of 
fire-escapes  shall  be  entitled  to  receive  for  said  notices  and 
said  examination  such  fees  as  the  council  may  by  ordinance 
provide.  [1883,  April  19:  80  v.  187,  188;  Rev.  Stat  1880; 
74  v.  176,  §  3.] 


743a  THE   OHIO    MUNICIPAL   CODE. 

An  act  to  prevent  loss  of  life  in  public  halls  and  theaters. 

[Sec.  1.]     [Public  halls  and  theaters  to  be  provided  with  dia- 
grams of  aisles  and  exits  for  guidance  of  audience  in  case  of  fire.] 

That  whoever,  being  the  owner  or  lessee,  or  having  control  as 
an  officer,  agent  or  otherwise,  of  any  opera  house,  theater  or 
hall,  permits  the  same  to  be  used  for  the  purpose  of  public 
assemblies  without  having  in  a  conspicuous  place  for  distribu- 
tion a  diagram  of  the  aisles  and  all  exits  of  the  place,  each 
floor  to  be  shown  separately,  with  instructions  designated  on 
said  diagram  for  the  guidance  of  audiences  in  case  of  fire 
or  other  casualties  shall  be  fined  not  more  than  one  thousand 
dollars  and  not  less  than  twenty-five  dollars  for  each  and  every 
offense;  provided,  however,  that  it  shall  be  sufficient  to  print 
such  diagram  in  programs,  on  separate  pages  thereof  unencum- 
bered by  other  matter,  to  which,  in  addition,  attention  must 
be  called  by  notice  printed  over  the  program  proper;  the  dia- 
gram provided  for  in  this  section  to  be  drawn  upon  a  scale 
of  not  less  than  twenty  feet  to  the  inch. 


[Sec.  2.]   [Exits   to    be    made    conspicuous    and   illuminated.] 

That  whoever,  being  the  owner  or  lessee,  or  having  control  as 
an  officer,  agent  or  otherwise,  of  any  opera  house,  theater  or 
hall  having  a  seating  capacity  of  seven  hundred  and  fifty  or 
more,  each  seat  space  computed  at  twenty  by  thirty  inches,  per- 
mits the  same  to  be  used  for  the  purpose  of  public  assemblies 
without  having  stationed  at  each  outside  exit  during  the  entire 
time  of  every  program  rendered  a  male  person  of  the  age  of 
eighteen  years  or  upwards,  and  having  each  and  every  outside 
exit  during  the  entire  time  of  every  program  rendered  a  male 
person  of  the  age  of  eighteen  [years]  or  upwards,  and  having 
each  and  every  outside  exit  thereof  painted  or  lettered  "  exit," 
each  letter  to  be  not  less  than  six  inches  in  length  and  three 
inches  in  breadth,  and  each  "  exit "  to  be  illuminated  by  an 
electric  light  to  be  operated  on  a  circuit  independent  of  any 
other  lights  and  to  be  operated  from  the  box  office  in  said 
building;  or  by  a  gas  light  fed  by  an  independent  pipe  from 
the  front  or  end  of  the  building  opposite  the  stage  and  discon- 
nected from  any  other  pipe  supplying  such  building,  or  in  case 
there  is  neither  electrical  light  nor  gas  light  in  the  municipality 


INSPECTION  OF  BUILDINGS. 


743b 


or  township  in  which  such  building  is  located,  there  may  be 
used  a  lamp  or  lantern  in  which  nonexplosive  oils  as  a  fuel 
must  be  used,  and  each  of  said  lights  to  show  a  red  light;  the 
switchboard  of  such  electric  light  and  stopcock  for  the  gas  to  be 
enclosed  securely  under  lock  and  key;  shall  be  fined  not  more 
than  one  thousand  dollars  nor  less  than  twenty-five  dollars. 

[Sec.  3.]  [Asbestos  or  steel  curtain  to  be  provided.]  That 
whoever,  being  the  owner  or  having  control  as  an  officer,  agent, 
or  otherwise  of  an  opera  house,  theater,  or  hall  having  a  seating 
capacity  of  seven  hundred  and  fifty  or  more,  each  seat  space 
being  computed  as  twenty  by  thirty  inches,  permits  the  same 
to  be  used  for  the  purpose  of  public  assemblies  without  having 
an  asbestos  or  steel  stage  curtain  of  standard  quality  that  will 
stand  a  fi>e  test  satisfactory  to  the  officers  named  in  section 
five  hereof,  said  curtain  to  lap  over  the  stage  opening  the 
sides  and  top  not  less  than  twelve  inches;  to  have  attached  to 
said  curtain  at  top  and  bottom,  the  full  width  of  the  curtain, 
iron  gas  piping  not  less  than  one  and  one-half  inches  inside 
diameter;  all  guide  wires  of  such  curtain  to  be  of  steel  and  to 
be  not  less  than  one-fourth  inches  in  diameter ; 

[Proscenium  wall.]  and  without  having  a  proccenium  wall  in 
each  of  such  buildings  either  of  brick  or  other  fire  proof  ma- 
terial in  a  manner  satisfactory  to  the  officers  named  in  section 
five  hereof ;  and  the  opening  in  said  proscenium  wall  other  than 
the  stage  opening,  to  be  provided  with  fire  proof  doors,  shall 
be  fined  not  more  than  one  thousand  dollars  nor  less  than 
twenty-five  dollars  for  each  and  every  such  offense. 

[Sec.  4.]  [Penalty  for  allowing  wire,  scenery,  etc.,  to  obstruct 
curtain.]  That  whoever,  being  the  owner  or  lessee  or  having 
the  control  as  an  officer,  agent  or  otherwise,  of  any  opera  house, 
theater  or  hall  having  a  seating  capacity  of  seven  hundred  and 
fifty  or  more,  computing  each  seat  space  at  twenty  by  thirty 
inches  permits  the  same  to  be  used  for  the  purpose  of  public 
(assemblies  or  allows  any  wire,  light,  reflector,  scenery  or  any 
other  thing  whatsoever  to  stand  in  or  across  the  space  that 
the  asbestos  curtain,  required  by  section  3  of  this  act,  would 


743c  THE    OHIO   MUNICIPAL    CODE. 

need  for  its  complete  downward  passage  shall  be  fined  not  more 
than  one  thousand  dollars  nor  less  than  twenty-five  dollars. 

[Sec.  5.]  [Examination  of  theaters  and  halls  and  certificate  of 
compliance.]  It  shall  be  the  duty  of  the  mayor,  chief  of  fire 
department  and  building  inspector  of  any  municipal  corpora- 
tion, or  if  such  corporation  has  no  chief  of  police  or  building 
inspector,  then  the  mayor  and  two  members  of  council,  and  in 
townships,  the  trustees  thereof  to  carefully  make  an  examina- 
tion of  the  buildings  described  in  sections  1  and  2  of  this  act, 
to  ascertain  whether  the  provisions  of  this  act  have  been  com- 
plied with ;  and  if  upon  such  examination  it  is  found  that  such 
building  is  arranged  and  provided  for  in  all  things  as  required 
by  the  provisions  of  this  act,  then  such  mayor,  chief  of  police 
and  building  inspector  or  such  mayor  and  members  of  council 
or  the  trustees  of  the  township  shall  issue  to  the  owner  or 
person  having  control  of  the  building  described  in  this  act  a 
certificate  of  such  fact,  which  shall  continue  in  force  one  year ; 
provided,  however,  that  in  case  such  officers  shall  find  upon  ex- 
amination or  inspection  that  any  building  or  structure  de- 
scribed in  this  act  is  not  properly  arranged  as  herein  provided, 
they  shall  notify  the  owner,  lessee,  officer  having  control,  agent 
or  otherwise  of  such  structure  or  building  of  such  fact,  and  it 
shall  be  the  duty  of  the  mayor  of  a  municipality,  with  the  aid 
of  the  police  or  of  the  prosecuting  attorney  with  the  aid  of  the 
sheriff,  to  prohibit  the  use  of  such  building  for  the  assemblage 
of  people  until  the  necessary  changes  have  been  made,  where- 
upon a  certificate  shall  be  issued  to  the  owner,  lessee  or  man- 
ager of  such  building  as  first  provided  in  this  section. 

[This  act  not  to  apply  to  open  air  or  summer  theaters.]  Pro- 
vided that  nothing  in  this  act  shall  be  held  to  apply  to  buildings 
known  as  open  air  or  summer  theaters  located  in  parks  or  other 
public  places,  in  which  all  the  seats  are  upon  the  first  or  ground 
floor  and  in  which  the  auditorium  is  entirely  open  at  the 
sides. 

[Sec.  6.J  [Power  of  council  to  make  further  regulations.] 
The  council  of  any  municipal  corporation  may  make  such  fur- 
ther regulations  as  it  may  consider  necessary  for  public  safety. 


INSPECTION  OF  BUILDINGS.  743d 

[Sec.  7.]     [When  this  act  takes  effect.]     This  act  shall  take 
effect  on  September  1st,  1904.       [1904,  April  23,  97  v.  264.] 


744 


THE    OHIO    MUNICIPAL    CODE. 


XV 

PLATS.1 


1.     ORIGINAL  PLATS. 

Sec.  2597  R.  S.     [Proprietor  to  cause  plat  of  proposed  village, 
etc.,  to  be  made.]       When  any  person  wishes  to  lay  out  a  ham- 
or  village,  or  subdivision  or  addition  to  any  municipal 


let 


corporation,  he  shall  cause  it  to  be  surveyed,  and  a  plat  or 
map  of  it  made  by  a  competent  surveyor;  in  which  plat  or 
map  shall  be  particularly  described  and  set  forth  the  streets, 
alleys,  commons,  or  public  grounds,  and  all  in-lots  and  out-lots 
and  fractional  lots  within  or  adjacent  to  such  hamlet  or  village, 
the  description  to  include  the  courses,  boundaries  and  extent3 
[29  v.  350,  §  1 ;  47  v.  52,  §  1 ;  S.  &  C.  1482 ;  S.  &  C.  1489.] 


(1)  Sections     on     plats. —  The 

sections  carried  under  this  heading 
formed  part  of  Chap.  11,  Div.  8,  Ti- 
tle XII,  R.  S.  All  sections  not  car- 
ried here  are  repealed  by  the  Code. 
Chapter  12  of  Div.  8,  Title  XII, 
relating  to  platting  commission  is 
substantially  retained  in  §  142  of 
the  Code,  page  367. 

(2)  See  note  "Status  of  Ham- 
lets "  under  §  1  of  the  Code. 

(3)  Plat  as  a  dedication. —  A 
plat  duly  made  and  recorded  ac- 
cording to  all  the  requirements  of 
the  statutes  constitutes  a  statutory 
dedication  of  the  property  so  plat- 
ted, to  public  use.  Fulton  v.  Mehr- 
enfeld,  8  O.  S.  440;  Wisby  v.  Bonte, 
19  0.  S.  238;  Winslow  v.  Cincin- 
nati, 6  N.  P.  47. 

When  all  the  statutory  require- 
ments have  been  complied  with,  no 
other  or  further  act  of  acceptance 
on  the  part  of  the  municipality  is 
required.  Sullivan  v.  Columbus,  12 
Dec.,  650;  Fulton  v.  Mehrenfeld,  8 
O.  S.  440. 

A  plat,  to  operate  as  a  dedication, 
must  mark  out  grounds  for  use  of 


the  public.  A  plat  setting  apart 
grounds  marked  "  The  A  R.  R.  De- 
pot," will  not  be  a  dedication  either 
to  the  public  or  the  railroad  com- 
pany. Todd  v.  R.  R.  Co.,  19  O. 
S.  514. 

Condition    in    dedication.  —  A 

plat  marking  out  sidewalk  lines  on 
the  street  dedicated  does  not  bind 
the  municipality  to  observe  these 
lines  in  constructing  sidewalks,  al- 
though council  has  by  a  general 
resolution  accepted  the  dedication, 
and  council  can  fix  the  sidewalk  line 
at  a  different  place.  Cox  v.  Lan- 
caster, 24  C.  C.  265;  2  C.  C.  (N.  S.) 
218   (aff'd,  69  O.  S.  576). 

Defective  plat  not  a  statutory 
dedication. —  A  plat  not  made  ac- 
cording to  the  statutory  require- 
ments, or  not  acknowledged  accord- 
ing to  statute,  does  not  operate  as 
a  statutory  dedication.  Stephenson 
v.  Leesburgh,  33  O.  S.  475;  Lock- 
land  v.  Smiley,  26  O.  S.  94;  Doren 
v.  Horton,  1  Disney  401;  Ashley  v. 
Toledo,  13  C.  C.  1;  Reynolds  v. 
Newton,  14  C.  C.  433;  Satchell  v. 
Doram,  4  O.  S.  542. 


PLATS.  745 

Such  plat  may  be  revoked  at  any  territory.     It  does  not  require  that 

time.     Lockland  v.  Smiley,  supra.  the  territory  shall  be  incorporated 

But  a  defective  plat,  though  not  as    a    municipal   corporation.     Wal- 

valid  as  a  statutory  dedication,  may  worth  v.   Collinwood,    8   C.   C.   477, 

show  an  intention  to  dedicate,  and,  478. 

if  there  is  a  proper  acceptance,  may  The  section  does  not  give  author- 
go  to  make  up  a  common  law  ded-  ity  to  enter  upon  lands  to  survey 
ication.  Daiber  v.  Scott,  3  C.  C.  and  plat  an  addition  to  a  municipal 
313.  corporation  against  the  will  of  the 

Common    law    dedication. —  See  tenant     in     possession.       Nigh     v. 

note  under  §  2650  R.  S.,  re-enacted  Keifer,  5  C.  C.  1. 

in  §  28  of  the  Code,  page  128.  Rights    of    vendee,    after    plat 

Presumption    of    correct    plat,"  made. — See    Doren    v.    Horton,     1 

when  municipality  has  been  legally  Disney,  401 ;  Huber  v.  Gazley,  18  O. 

established,  see  Stephenson  v.  Lees-  18;    Reynolds  v.   Newton,   14   C.   C. 

burgh,  33  O.  S.  475.  433;   Ashley  v.   Toledo,    13  C.  C.   1 

Scope   of   section.— The   statute  (aff'd,    59    0.    S.    631);    Myers    v. 

gives    authority    to    any    person   to  Toledo,  18  C.  C.  817. 
make  a  plat  of  a  certain  division  ol 

Sec.  2598  R.  S.  [What  such  plat  shall  contain.]  All  the  in- 
lots  intended  for  sale  shall  be  numbered  in  progressive  numbers, 
or  by  the  squares  in  which  they  are  situated,  and  their  precise 
length  and  width  shall  be  stated  on  such  plat  or  map;  and  all 
out-lots  which  do  not  exceed  ten  acres  in  size,  shall  in  like 
manner  be  surveyed  and  numbered,  and  their  precise  lenguh 
and  width  stated  on  the  plat  or  map,  together  with  any  streets, 
alleys,  or  roads  which  divide  or  border  on  the  same.  [29  v. 
350,  §  2  S.  &  C.  1483.] 

Sec.  2599  R.  S.  [Corner-stone  to  be  planted.]  The  proprie- 
tor of  the  hamlet  or  village,  at  the  time  of  surveying  and  laying 
it  out,  shall  plant  and  fix,  at  the  corner  of  the  public  ground,  or 
a  public  lot,  if  any  there  be,  and  if  uhere  be  none,  then  at  the 
corner  of  one  of  the  in-lots,  and  at  the  corner  of  each  out-lot, 
a  good  and  sufficient  stone,  of  such  size  and  dimensions,  and 
in  such  manner,  as  the  surveyor  shall  direct,  for  a  corner  from 
which  to  make  future  surveys ;  and  the  point  or  points  where 
the  same  may  be  found  shall  be  designated  on  the  plat  or  map. 
[29  v.  350,  §  3 ;  S.  &  C.  1483.] 

Sec.  2600  R.  S.  [Plat  to  be  acknowledged  and  recorded.]  Af- 
ter the  plat  or  map  is  completed,  it  shall  be  certified  by  the 
surveyor,  and  acknowledged  by  the  owner  or  owners  before  some 
officer  authorized  to  take  the  acknowledgment  of  deeds,  who 
shall  certify  his  official  act  on  the  plat  or  map;  and  if  any 
owner  is  a  non-resident  of  the  state,  his  agent,  -authorized 
by  writing,  may  make  such  acknowledgment;  and  such  plat 
or  map,  and  if  the  execution  is  by  agent,  his  written  authority, 


746  THE    OHIO    MUNICIPAL    CODE. 

shall  thereupon  be  recorded  in  the  office  of  the  county  recorder.1 
[29  v.  350,  §  4;  S.  &  C.  1483.] 

(1)    Recording    plats. —  A     plat  and  acknowledged  cannot  operate  as 

operated  as  a  dedication,  though  not  a    statutory    dedication.     Doren    v. 

recorded,  where  no  statute  required  Horton,    1    Disney,    401 ;    Ashley   v. 

recording.       Williams     v.     Presby-  Toledo,   13   C.    C.   1 ;    and  see  notes 

terian "  Society,  1  O.  S.  478.  under  preceding  section. 

But  now  a  plat  not  duly  recorded 

Sec.  2601  R.  S.  [Plat  of  subdivisions;  its  acknowledgment  and 
record;  fee  in  corporation,  except,  etc.;  plat  to  correspond  with 
maps  of  platting  commission;  when  to  be  approved  by  council.] 
A  proprietor  of  lots  or  grounds  in  a  municipal  corporation, 
who  subdivides  or  lays  the  same  out  for  sale,  shall  cause  to 
be  made  an  accurate  map  or  plat  of  such  subdivision,  describing 
with  certainty  all  grounds  laid  out  or  granted  for  streets,  al- 
leys, ways,  commons,  or  other  public  uses ;  also,  all  lots  sold,  or 
intended  for  sale,  by  progressive  numbers,  or  by  the  squares  in 
which  they  are  situated,  and  the  precise  length  and  width  of 
each  lot  sold,  or  intended  for  sale ;  which  map  or  plat  shall  be 
subscribed  by  such  proprietor,  or  his  agent,  duly  authorized  by 
writing,  acknowledged  before  an  officer  authorized  to  take  the 
acknowledgment  of  deeds,  who  shall  certify  the  acknowledgment 
of  the  instrument,  and  recorded  in  the  office  of  the  recorder  of 
the  county;  and  thereupon  the  map  or  plat  so  recorded  shall 
be  deemed  a  sufficient  conveyance  to  vest  in  the  municipal  cor- 
poration the  fee  of  the  parcel  or  parcels  of  land  designated  or 
intended  for  streets,  alleys,  ways,  commons,  or  other  public 
uses,  to  be  held  in  the  corporate  name  in  trust  to  and  for  the 
uses  and  purposes  in  the  instrument  set  forth  and  expressed,  des- 
ignated, or  intended :  provided,  that  no  such  map  or  plat  of  any 
addition  within  the  limits  of  any  municipal  corporation,  when 
there  are  no  1  record  plats  adopted  by  a  platting  commission 
or  board  of  public  works,  shall  be  recorded  until  the  engineer 
of  the  municipal  corporation  certifies  that  the  streets,  as  laid 
down  on  the  plats  of  such  addition,  correspond  with  those 
laid  down  on  the  recorded  plats  of  the  platting  commission  or 
board  of  public  works,  and  when  there  are  streets  laid  down 
in  addition  to  those  adopted  by  a  platting  commission  or  board 
of  public  works,  or  in  any  municipal  corporation  where  no  plat- 
ting commission  is  or  has  been  in  existence,  no  such  plat  shall  be 
recorded  until  the  same  shall  have  been  approved  by  the 
council  of  such  municipal  corporation2  [73  v.  60,  §  6;  (S. 
&  C.  1483).! 


PLATS. 


747 


(1)  The  word   "no"  was  "on"  Character      of      municipality's 

in  the  original  act  of  1873    (73  O.  title.— The   title,   which   a   munici- 

L    go).  Pal    corporation    acquires,    under    § 

(2)  Construction  of  former  2601,  to  streets  dedicated  by  a  pro- 
statutes  relating  to  recording,  etc.,  prietor  who  sub-divides  lots  for 
of  plats,  see  Lebanon  v.  Warren  sale,  is  held  for  the  use  of  the  pub- 
Co.,  9  O.  80;  Le  Clercq  v.  Gallipolis,  lie  for  street  purposes.  Callen  v. 
7  O.  (1st  pt.)  217;  Crippen  v.  Ohio  Electric  Light  Co.,  66  0.  S.  166; 
University,  12  O.  96;  Huber  v.  Gaz-  Keefe  v.  R.  R.  Co.,  8  N.  P.  466; 
ley,  18  O.  18;  McLaughlin  v.  Stev-  McLean  v.  Electric  Light  Co.,  9  B. 
ens,  18  O.  94;  Langley  v.  Gallipolis,  65. 

2  O.  S.  107;  Satchell  v.  Doram,  Purpose  of  section,  has  no  rela- 
4  O.  S.  542;  Bd.  of  Ed.  v.  Edson,  tion  to  assessments.  See  Gibson  v. 
18  0.  S.  221;  Seegar  v.  Harrison,  Cincinnati,  8  N.  P.  466. 
25  O.  S.  14.  Effect  of  record  of  plat  not  prop- 
Plat  as  a  dedication.—  See  notes  erly  approved,  see  Abraham  v.  Cin- 
under  §  2597  R.   S.  supra.  cinnati,  13  Dec.  619. 

Sec.  2602  R.  S.  [Penalty  aguinst  making  record  contrary  to 
this  chapter.]  Any  county  recorder  who  records  such  map 
or  plat  contrary  to  the  provisions  of  this  chapter,  shall  forfeit 
and  pay  any  sum  not  more  than  five  hundred  dollars  nor  less 
than,  one  hundred  dollars,  to  be  recovered  with  costs  in  a  civil 
action,  in  the  name  and  for  the  use  of  the  county,  by  the  prose- 
cuting attorney.      [73  v.  61,  §  3.] 

Sec.  2603  R.  S.  [Penalty  for  selling  lots  contrary  to  this  chap- 
ter. ]  If  a  proprietor,  or  his  agent  or  attorney,  sells  any  lot  or 
lots  in  any  plan  of  subdivision  of,  or  addition  to  the  lots  orig- 
inally laid  out  in  a  municipal  corporation,  before  a  map  or 
plat  of  such  subdivision  or  addition  shall  have  been  recorded,  as 
herein  required,  such  proprietor,  agent,  or  attorney  shall  forfeit 
and  pay  for  each  lot  sold  the  sum  of  fifty  dollars,  to  be  recov- 
ered with  costs,  in  a  civil  action,  in  the  name  and  for  the  use 
of  the  municipal  corporation,  before  any  court  of  competent 
jurisdiction,  at  the  suit  of  the  solicitor  or  any  citizen  of  the 
corporation.      [29  v.  350,  §  7 ;  S.  &  C.  1483.] 

Sec.  2604  R.  S.  [Fee  in  county,  except,  etc.]  The  plats  or 
maps,  other  than  those  mentioned  in  section  two  thousand  six 
hundred  and  one,  shall  be  deemed  in  law  a  sufficient  convey- 
ance to  vest  the  fee  simple  of  all  such  parcels  of  land  as  are 
therein  expressed,  named,  or  intended  for  public  use,  in  the 
county  in  which  the  hamlet  or  village  is  situated,  for  the  uses 
and  purposes  therein  named,  expressed  or  intended,  and  for 
no  other  use  or  purpose  whatever.1  [29  v.  350,  §  8 ;  S.  &  C. 
1484.] 

( 1 )  Title  to  streets. —  The  fee  subdivision  forming  a  village  or  ad- 
of  streets  laid  out  on  a  plat  of  a       dition     to     municipal     corporation 


748  THE    OHIO    MUNICIPAL    CODE. 

vests  in  the  county,  and  the  period       vested    is    21    years.     Walworth    v. 

Collinwood,  8  C.  C.  477. 


Sec.  2605  R.  S.     [Penalty  for  neglect  to  plant  corner-stone,  etc.] 

If  any  person  lays  out  a  hamlet  or  village,  or  addition  to  a 
municipal  corporation,  and  neglects  to  plant  the  corner-stones 
therein,  or  causes  the  same  to  be  surveyed  or  platted  in  any 
other  manner  than  that  which  is  prescribed  in  this  chapter,  he 
shall  forfeit  and  pay  the  sum  of  one  hundred  dollars  and  costs 
of  suit,  to  be  recovered  in  a  civil  action,  in  the  name  of  the 
county  treasurer,  for  the  use  of  the  county.  [29  v.  350,  §  9; 
S.  &  C.  1485.] 

Sec.  2606  It.  S.  [Penalty  for  disposing  of  lot  before  provisions 
of  chapter  complied  with.]  If  any  person  disposes  of,  or  offers 
for  sale,  or  leases  for  a  time  exceeding  five  years,  any  in-lot  or 
out-lot,  or  any  part  of  either,  in  any  hamlet  or  village,  whether 
incorporated  or  not,  or  in  any  addition  to  any  municipal  cor- 
poration, before  the  requisitions  of  this  title  are  complied  with, 
he  shall  forfeit  and  pay  the  sum  of  twenty-five  dollars  for  each 
lot  or  part  of  lot  so  sold,  or  offered  for  sale,  or  leased,  to  be 
recovered,  with  costs,  in  a  civil  action,  in  the  name  of  the 
county  treasurer,  for  the  use  of  the  county.1  [29  v.  350,  §  10  ; 
S.  &  C.  I486.] 

( 1 )    Contract   for  sale  is  valid,       according  to  terms  of   the   statute, 
although    the    village    lot    has    not       Strong  v.  Darling  et  al.,  9  O.  201. 
been  surveyed,  platted,  and  recorded 


Sec.  2607  E.  S.  [Directors  to  lay  out  village  where  county 
seat  located:  how  governed;  penalties.]  The  directors  appoint- 
ed by  the  court  of  common  pleas,  to  lay  out  a  village,  where 
a  seat  of  justice  has  been  located  on  lands  upon  which  no  muni- 
cipal corporation  is  situated,  shall  be  governed  by  the  provi- 
sions of  this  chapter,  and  liable  to  the  same  penalties  pre- 
scribed in  section  two  thousand  six  hundred  and  two.  [29  v. 
350,  §  11;  S.  &  C.  I486.] 

2.     VACATING  PLATS.1  ' 

Sec.  2608  R.  S.  [Vacation  of  plat.]  The  court  of  common 
pleas,  upon  the  application  of  two-thirds  of  the  proprietors 
thereof,  shall  have  power  to  alter  or  vacate  the  plat  of  any 
municipal    corporation,     addition    thereto,    or    parts    thereof, 


PLATS.  .  749 

within  the  county,  as  hereinafter  specified.      [38  v.  32,  §   1 ; 
S.  &  C.  1488.] 

( 1 )   The     sections     carried     here      the  sections  of  this  subdivision  are 
formed     subdivision    2,     Chap.     11,       repealed. 
l>iv.   8,  Title  XII.,  R.   S.     None  of 

Sec.  2609  R.  S.  [Application  for  vacating  or  altering  plat;  no- 
tice.] All  applications  for  ^Mating  or  altering  any  plat,  addi- 
tion, or  part  thereof,  shall  be  1^  petition  in  writing,  filed  with 
the  clerk  of  the  court  of  common  pleas,  and  the  applicant  or 
applicants  shall  give  thirty  days'  notice  thereof  by  publication 
in  some  newspaper  printed  in  the  county  and  of  general  circu- 
lation therein;  which  notice  shall  set  forth  briefly  the  part  or 
parts  of  the  plat  or  addition  to  be  vacated.  [1886,  February 
25:  83  v.  24;  Kev.  Stat.  1880;  38  v.  32,  §  4;  (S.  &  C.  1488).] 

Sec.  2610 U.S.  [When  court  may  alter  or  vacate  plat;  any 
person  feeling  interested  may  be  made  party  defendant]  If  the 
petitioners  produce  to  the  court  satisfactory  evidence  that  the 
notice  required  by  the  preceding  section  has  been  given,  and 
that  two-thirds  of  all  the  persons  owning  lots  or  parts  thereof 
in  the  corporation  or  the  addition,  as  the  case  may  be,  or  their 
authorized  agents  or  attorneys,  have  made  application  to  have 
the  whole  or  a  part  of  such  corporation  or  addition,  altered  or 
vacated,  the  court  shall,  in  its  discretion,  proceed  to  alter  or 
vacate  such  corporation  or  addition,  or  any  part  of  either,  as 
the  case  may  be;  and  the  proceedings  shall  be  recorded  by  the 
clerk,  in  the  records  of  the  court,  a  copy  of  which  record  shall 
be  made  and  certified  under  the  seal  of  the  court,  by  the  clerk 
thereof,  and  shall,  by  the  parties  applying  for  such  vacation 
or  alteration,  within  thirty  days  from  the  rising  of  the  court, 
be  deposited  with  the  recorder  of  the  county,  who  shall  record 
the  same;  provided,  that  the  vacation  of  any  municipal  cor- 
poration or  addition,  or  part  thereof,  shall  not  vacate  any  part 
of  a  state  or  county  road.  At  the  term  at  which  the  notice 
shall  be  given,  as  is  provided  for  in  section  twenty-six  hundred 
and  nine,  or  at  any  subsequent  term  during  the  pendency  of 
the  application,  any  person  feeling  interested  in  the  proceedings, 
may,  upon  motion,  be  made  a  party  defendant  to  the  applica- 
tion; in  which  case,  upon  final  hearing,  the  party  succeeding 
shall  have  judgment  against  the  other,  for  the  costs  of  the 
proceedings,  and  execution  may  issue  therefor  as  in  other  cases. 
[29  v.  352,  §§  3,  4;  S.  &  C.  1487.] 

Sec.  2611  It.  S.  [Commons  may  be  changed  into  streets:  when 
and  how.]      On  application  made,  and  notice  given  according  to 


750 


THE    OHIO    MUNICIPAL    CODE. 


the  provisions  of  this  subdivision,  the  court  of  common  pleas 
shall  have  power  to  change  any  commons  that  may  be  included 
in  the  plat  of  any  municipal  corporation  into  streets,  and  to 
cause  such  change  to  be  recorded  as  is  provided  by  section 
two  thousand  six  hundred  and  ten.  [29  v.  352,  §  6 ;  S.  &  C. 
1487.] 

Sec.  2612 U.S.  [Clerk's  fees.]  The  clerk  of  the  court  shall 
be  entitled,  for  recording  a  plat  required  to  be  recorded  under 
the  provisions  of  this  chapter  and  for  other  services  required 
of  him,  the  same  fees  as  are  allowed  to  him  for  similar  services 
by  the  provisions  regulating  his  fees.  [29  v.  352,  §  5;  26  v. 
18,  §  5;  S.  &  C.  1487.] 

Sec.  2613  R.  S.  [Application  for  vacation  and  assessment  of 
damages.]  If  the  court  is  of  opinion  that  any  person  owning 
any  lot  in  such  plat,  addition,  or  parts  thereof  proposed  to  be 
vacated  or  altered,  not  assenting  thereto,  will  sustain  damage 
thereby,  it  may  proceed  to  hear  proof  in  reference  thereto,  and 
may  render  judgment  against  the  petitioners  for  such  dam- 
ages as  it  may  think  proper  and  just,  and  the  same  shall  be 
assessed  by  the  court  against  the  petitioners  ratably,  according 
to  the  value  of  the  property  owned  by  the  petitioners,  as  the 
same  stands  taxed  on  the  tax-list  of  said  county;  and  when 
necessary,  the  court  shall  appoint  a  guardian  ad  litem  for  all 
minors  or  persons  of.  insane  mind,  who  may  be  interested  in  the 
premises ;  and  the  judgment  of  the  court  vacating  such  plat, 
addition,  or  parts  thereof,  shall  be  conditional  upon  the  pay- 
ment of  the  damages  thus  assessed.  [38  v.  32,  §§  2,  3 ;  S.  & 
C.  1488.] 

Sec.  2614 U.S.     [Changing  of  incorporate  town  or  addition.] 

Any  person  or  persons  owning,  either  jointly  or  severally,  and 
either  in  their  own  right  or  in  trust,  and  having  the  legal 
title  to,  any  land  laid  out  in  town  lots,  not  within  the  limits 
or  subject  to  the  control  of  any  municipal  corporation,  may 
change  such  lots  and  the  streets  and  alleys  bounding  the  same, 
by  making,  acknowledging  and  having  recorded,  as  in  this 
chapter  provided,  a  new  plat  of  such  land,  and  having  the 
proper  transfers  made  in  the  office  of  the  county  auditor:  pro- 
vided, that  no  such  change  shall  be  made  if  it  affects  injuriously 
any  lots  on  the  streets  or  alleys,1  or  within  the  plat  so  changed, 
unless  all  the  owners  of  the  lots  so  affected  are  parties  joining 
in  making  the  change,  or  they  give  their  consent  in  writing 
on  the  new  plat,  and  the  same  be  recorded  therewith;  and  any 
change  of  a  town  plat  made  as  in  this  section  provided  shall 


PLATS.  751 

have  the  same  force  and  effect  as  if  made  by  the  judgment  of  a 
court  having  jurisdiction  thereof.      [76  v.  88,  §§  1,  2.] 

(1)   Change     must     not    affect  man,  26   B.   73   edit;   if  streets  or 

streets. — Owner    may    change    lots  alleys    are  changed,   proceedings   in 

provided  no  alterations  are  made  in  court  must  be  had.     lb. 
streets   or   alleys.     Huling   v.   Huff- 

Sec.  2614a  R.  S.  [Proceedings  to  vacate  lots  not  within  a  mu- 
nicipal corporation;  duty  of  county  auditor  and  recorder.]      Any 

person  or  persons  owning,  either  jointly  or  severally,  and  either 
in  their  own  right  or  in  trust,  and  having  the  legal  title  to  any 
land  laid  out  in  town  lots,  or  to  any  whole  block  or  blocks  of 
lots  in  any  land  laid  out  in  town  lots,  and  not  within  the 
limits  or  under  the  control  of  any  municipal  corporation,  may 
vacate  said  lots  or  block  or  blocks  of  lots  upon  giving  notice  of 
his,  her  or  their  intention  so  to  do,  for  two  weeks  in  some  news- 
paper published,  and  of  general  circulation,  in  the  county 
where  said  land  lies,  and  if  any  of  said  lots  have  been  sold, 
personal  written  notice  to  the  owner  or  owners  of  said  lots  so 
sold,  and  if  no  notice  of  an  injunction  granted  against  such  vaca- 
tion is  served  upon  the  auditor  of  the  county  where  said  lands 
lie,  or  any  notice  of  dissent  from  said  vacation,  by  the  owners 
of  any  of  said  lots,  within  ten  days  after  the  completion  of 
said  notice,  the  said  auditor  shall  and  he  is  hereby  authorized 
and  required  to  make  all  necessary  changes  and  transfers  in 
and  upon  his  duplicate  after  said  ten  days  from  the  time  of  the 
completion  of  said  notice;  the  proof  of  which  shall  be  fur- 
nished said  auditor,  and  he  shall  give  to  the  party  or  parties  at 
whose  instance  such  vacation  is  made,  a  certificate  stating  that 
such  lots  or  block  or  blocks  of  lots  have  been  vacated,  upon  the 
presentation  of  which  to  the  recorder  of  said  county,  he  shall 
write  upon  such  plat  of  .lots,  block  or  blocks  as  they  appear 
on  the  plat  of  such  lots  the  word  "  vacated,"  and  said  vacation 
shall  have  the  same  effect  as  if  made  by  the  judgment  of  a  court 
having  jurisdiction  thereof.  The  said  auditor  and  recorder 
shall  be  entitled  to  such  fees  for  their  services  under  this  section 
as  they  are  entitled  by  law  in  like  cases,  which  shall  be  paid  by 
the  party  or  parties  making  such  vacation.  [1883,  April  18? 
80  v.  180.] 

3.     KEVISION  OF  PLATS.1 

Sec.  2615 U.S.  [Who  shall  revise  and  re-number  lots.] 
Where  the  lots  of  any  municipal  corporation  are  not  numbered 
consecutively  upon   the  original   plat  thereof,    and   the   plats 


752  THE    OHIO    MUNICIPAL    CODE. 

of  additions  thereto,  or  subdivisions  thereof,  it  shall  be  lawful 
for  the  auditor  and  recorder  of  the  county  in  which  such  munici- 
pal corporation  may  be  situate,  in  conjunction  with  some  person 
to  be  appointed  by  the  mayor  of  such  municipal  corporation,  to 
make  a  revision  of  the  numbers  of  all  the  in-lots  and  out-lots 
of  such  municipal  corporation,  as  the  same  stand  upon  record, 
and  to  number  anew  all  the  lots,  so  that  the  in-lots  shall  have 
but  one  consecutive  series  of  numbers,  beginning  with  number 
one ;  and  the  out-lots  shall  have  but  one  similar  series  of  num- 
bers, also  beginning  with  number  one.  [46  v.  34,  §  1 ;  S.  &  C. 
1489.] 

(1)  None  of  the  sections  of  this 
subdivision  are  repealed  by  the 
Code. 

Sec.  2616  R.  S.  [Mode  of  re-numbering,  etc.]  Such  auditor 
and  recorder,  with  their  associate,  to  be  appointed  as  aforesaid, 
shall  make  a  schedule  of  all  the  in-lots  of  any  such  municipal 
corporation,  beginning  with  the  original  plat  thereof,  setting 
down  the  lots  in  the  same  order  of  their  numbers,  and  placing 
opposite  thereto  the  new  numbers  which  shall  be  assigned  to  the 
respective  lots,  following  in  the  same  manner  with  the  plats  of 
addition  and  subdivision,  according  to  their  priority  in  date  of 
record,  so  that  the  first  column  shall  contain  the  old  numbers 
of  the  in-lots  in  their  consecutive  order  and  the  second  column 
shall  exhibit  opposite  to  such  numbers  respectively,  the  new 
numbers  assigned  to  each  of  said  lots ;  and  in  the  same  manner, 
they  shall  make  a  schedule  of  the  out-lots ;  such  schedule  shall 
accurately  and  distinctly  indicate  the  plat  in  which  such  in-lot 
or  out-lot  originally  stands  upon  record;  and  it  shall  be  the 
duty  of  the  auditor  and  recorder  to  place  such  schedule  on  record 
in  their  respective  offices.      [46  v.  34,  §  2 ;  S.  &  C.  1489.] 

Sec.  2617  R.  S.  [Shall  be  assessed  and  legally  known  by  their 
new  numbers.]  When  the  revision  and  re-numbering  of  the 
lots  in  any  such  municipal  corporation  have  been  made,  and  the 
schedule  thereof  recorded,  as  provided  in  the  preceding  section, 
the  lots  shall  be  assessed  and  entered  upon  the  tax-list  for 
taxation,  according  to  their  new  numbers ;  and  in  all  the  opera- 
tions of  the  assessment  and  collection  of  taxes  they  shall  be 
lawfully  known  and  designated  by  the  new  numbers  given  to 
them  under  the  authority  of  this  subdivision ;  and  all  convey- 
ances of  the  same  made  by  the  new  numbers  shall  be  sufficient  to 
pass  the  title.      [46  v.  34,  §  3 ;  S.  &  C.  1490.] 


PLATS.  753 

Sec.  2618 U.S.  [How  expenses  of  re-numbering  paid.]  When 
such  revision  and  re-numbering  are  done  at  the  request  of  the 
corporate  authority,  of  any  such  municipal  corporation,  the 
expenses  shall  be  paid  by  such  corporation;  but  the  county 
commissioners  of  any  county  in  which  any  unincorporated 
hamlet  or  village  may  be  situated,  shall  have  authority  to  direct 
the  auditor  and  recorder  to  make  such  revision  and  re-number- 
ing of  such  unincorporated  hamlet  or  village,  and  cause  the 
expenses  thereof  to  be  paid  out  of  the  county  treasury ;  and  they 
may  direct  the  auditor  and  recorder  to  make  such  revision  and 
re-numbering  of  an  incorporated  hamlet  or  village,  if  the 
commissioners  are  of  opinion  that  such  revision  and  re-number- 
ing are  necessarv  for  convenience  and  efficiency  in  taxation. 
[46  v.  34,  §  4;  S.  &  C.  1490.] 

Sec.  2619  R.  S.  [How  additions  or  subdivisions  are  to  be  num- 
bered after  such  revision.]  After  the  revision  is  made  and  re- 
corded, as  hereinbefore  provided,  every  person  who  lays  off  lots 
as  an  addition  to  such  municipal  corporation,  or  who  makes 
a  subdivision  of  lots  therein,  shall  number  the  lots  so  divided 
upon  his  plat  in  regular  consecutive  numbers,  commencing  with 
the  next  number  after  the  highest  number  of  such  in-lots  or 
out-lots,  as  the  same  shaall  be  ascertained  by  the  recorder  from 
a  careful  examination  of  the  original  records  and  revisions. 
[46  v.  34,  §  5 ;  S.  &  C.  1490.] 

Sec.  2620 U.S.  [Compensation.]  The  auditor,  recorder,  and 
their  associate,  shall  each  receive  the  sum  of  two  dollars  per 
day  for  their  services  under  this  subdivision.  [46  v.  34,  §  6 ; 
S.  &  C.  1490.] 

4.  LOST  OK  DESTEOYED  RECOKDS.1 

Sec.  2621  R.  S.  [Application  to  supply  lost  or  destroyed  rec- 
ords.] It  shall  be  lawful  for  any  ten  persons,  their  agents  or  at- 
torneys, owning  or  being  interested  in  any  lots  of  land  in  any 
municipal  corporation,  where  the  original  plat,  or  any  addition 
thereto,  has  been  recorded  in  the  records  of  the  county  in  which 
such  municipal  corporation  is  situated,  and  the  records  and 
original  plat  thereof  have  been  lost  or  destroyed,  to  make 
application  in  writing  to  the  county  commissioners  of  such 
county  to  have  the  records  of  the  plat  or  plats  so  lost  or 
destroyed  supplied,  which  application  shall  be  filed  with  the 
auditor  of  such  county.      [70  v.  65,  §  1.] 

( 1 )  None  of  the  provisions  of  this 
subdivision  are  repealed  by  the 
Code. 


754  THE    OHIO    MUNICIPAL    CODE. 

Sec.  2622  R.  S.  [Publication  of  notice  of  such  application.] 
Upon  the  filing  of  the  application,  it  shall  be  the  duty  of  the 
auditor  of  such  county  to  give  notice,  by  publication  for  two 
consecutive  weeks  in  some  newspaper  published  and  of  general 
circulation  in  the  county,  or  if  there  be  no  newspaper  published 
in  such  county,  then  in  some  newspaper  of  general  circulation 
therein,  of  the  filing  of  the  application  as  aforesaid,  and  also 
to  notify  the  county  commissioners  thereof.      [70  v.  65,  §  2.] 

Sec.  2623  R.  S.  [County  commissioners  to  appoint  surveyor, 
etc.;  duties  of  surveyor.]  It  shall  be  the  duty  of  the  commis- 
sioners of  such  county,  upon  the  filing  of  the  application,  and 
the  giving  of  the  notice  thereof,  as  aforesaid,  forthwith  to 
employ  a  competent  surveyor,  who,  after  being  duly  sworn  to 
well  and  faithfully  discharge  the  duties  assigned  him,  shall 
proceed  to  re-plat  such  municipal  corporation  according  to  the 
original  plan  or  plat  of  the  same;  and  for  the  purpose  of 
enabling  him  more  easily  to  find  the  lines  and  corners  of 
streets,  lanes,  alleys,  and  lots,  such  surveyor  may  call  and 
examine  witnesses,  under  oath  or  otherwise,  and  when  he  shall 
have  fully  performed  all  the  duties  assigned  him,  and  made  a 
plat  of  such  municipal  corporation,  he  shall  make  and  attach 
his  certificate  to  such  plat  that  the  same  is  a  correct  copy  of 
the  original  plat  of  such  municipal  corporation,  as  he  verily 
believes,  together  with  the  costs  and  expenses  of  making  the 
same,  and  forthwith  file  it  with  the  auditor  of  the  county.  [70 
v.  65,  §  3.] 

Sec.  2624  R.  S.  [Record  of  plat  and  certificate.]  Upon  the 
filing  of  the  plat  and  certificate  by  the  surveyor,  the  commis 
sioners  of  the  county  shall  cause  the  same  to  be  recorded  in  the 
office  of  the  recorder  of  the  county;  and  when  the  plat  and 
certificate  shall  have  been  recorded,  the  record,  or  a  copy 
thereof,  certified  to  by  the  recorder,  shall  be  prima  facie  evi- 
dence of  the  plat  of  the  municipal  corporation,  in  all  the  courts 
of  this  state.      [70  v.  66y  §  4.] 

Sec.  2625  R.  S.  [Record  of  proceedings  by  county  auditor.] 
It  shall  be  the  duty  of  the  auditor  of  such  county  to  keep  a 
full  and  complete  record  of  the  proceedings,  as  aforesaid,  in  the 
commissioners,  journal,  and  for  which  he  shall  receive  such 
compensation  as  is  allowed  by  law  for  similar  services;  and 
the  surveyor  and  recorder  aforesaid  shall  receive  and  be  paid 
out  of  the  county  fund  of  such  county,  on  the  order  of  the 
county  auditor,  for  their  services,  such  fees  as  are  allowed  by 
law  for  similar  work.      [70  v.  65,  §  5.] 


STREETS.  75i 


XVI 

STREETS. 


1.     STKEETS  ON  STATE  LANDS. 

Sec.  625  R.  S.  [No  streets,  alleys,  or  roads  shall  be  laid  out 
through  lands  belonging  to  benevolent  institutions.]  No  streets, 
alleys,  or  roads,  shall  be  laid  out,  or  established  through  or 
over  the  lands  belonging  to  any  of  the  public  institutions  of  the 
state,  without  the  special  permission  of  the  General  Assembly. 
[49  v.  110  (119),  §  1;  S.  &  C.  181.] 

2.     COUNTY  BRIDGES  AND  EOADS  IN  MUNICIPAL 

LIMITS. 

Sec.  860  R.  S.  [Commissioners  shall  construct  and  repair 
bridges,  except,  etc.;  demand  of  portion  of  bridge  tax  in  Hamil- 
ton Co.]  The  commissioners  shall  construct  and  keep  in  repair 
all  necessary  bridges  over  streams  and  public  canals  on  all 
state  and  county  roads,  free  turnpikes,  improved  roads,  aban- 
doned turnpikes  and  plank  roads  in  common  public  use,  except 
only  such  bridges  as  are  wholly  in  such  cities  and  villages 
having  by  law  the  right  to  demand,  and  do  demand  and  receive 
part  of  the  bridge  fund  levied  upon  property  within  the  same ; 
and  when  they  do  not  demand  and  receive  said  portion  of 
bridge  tax  the  commissioners  shall  construct  and  keep  in  repair 
all  bridges  in  such  cities  and  villages.  Provided,  that  in  all 
cases,  except  counties  containing  a  city  of  the  first  grade  of 
the  first  class,  the  granting  of  the  demand,  made  by  any  city 
or  village  for  its  portion  of  the  bridge  tax,  shall  be  optional 
with  the  said  board  of  commissioners.1  [91  v.  19 ;  83  v.  29 ; 
Rev.  Stat.  1880;  69  v.  61,  §  1 ;  36  v.  51,  §  1 ;  (S.  &  C.  193).] 

(1)   Bridges  in   municipal   lim-  fund.       Commissioners  v.   By.   Co., 

its  —  Rights     of     county. —  County  45    O.    S.    401.     See    further    Perry 

commissioners    cannot    recover    for  Co.  v.  R.  R.  Co.,  43  O.  S.  451. 

damages  to  bridge  in  municipality  County     cannot     by     mandamus 

which    receives    part   of   the   bridge  compel  municipality  to  assume  con- 


756 


THE    OHIO    MUNICIPAL    CODE. 


trol  of  bridge.  State  ex  rel.  Com- 
missioners v.  Cincinnati,  4  N.  P. 
313. 

Duty  and  liability  of  county. — 
County  not  required  to  make  or  re- 
pair bridges  in  municipalities  hav- 
ing right  to  part  of  bridge  fund. 
State  ex  rel.  Commissioners  v.  Cin- 
cinnati, 4  N.  P.  313.  See  further, 
note  (2)  to  §  28  of  the  Code.  As 
to  duty  where  municipality  receives 
no  part  of  bridge  fund,  see  Piqua 
v.  Geist,  59  O.  S.  163;  Newark  v. 
McDowell,  16  C.  C.  556,  and  see 
§  4938   R.  S.  infra. 

Rights  of  municipality  as  to  con- 
trol over  such  bridges,  see  note  (2) 
under    §    28    of  the    Code 


Duty  and  liability  of  municipal- 
ity—As to  the  liability  of  munic- 
ipality for  injuries  on  such  bridges, 
see  note  "Where  duty  of  county  to 
repair,"  page  118. 

Construction     of    section. — In 

connection  with  §2824  R.  S.  (re- 
lating to  tax  levies  for  bridge  pur- 
poses ) ,  see  State  ex  rel.  v.  Commis- 
sioners, 4  N.  P.  343. 

In  connection  with  §  4938  R.  S., 
see  Commissioners  v.  Ry.  Co.,  45  O. 
S.  401. 

Township  roads  in  municipal 
limits,  improvement  of,  see  97  O.  L. 
94,  550,  and  amendments;  98  O.  L. 
155,  292;  R.  S.  §§4686-1  to  4686-25 
inclusive. 

Duties  of  Road  Superintendents, 
see  98  O.  L.  335;  §§4717,  4715a, 
4716,  4729,  4730  R.  S. 


Sec.  4938  R.  S.  [Commissioners  must  build  bridges  in  certain 
cities  and  villages.]  The  commissioners  of  the  several  coun- 
ties shall  cause  to  be  constructed  and  kept  in  repair,  in  the 
manner  prescribed  by  law  all  necessary  bridges  in  villages  and 
cities  not  having  the  right  to  demand  and  receive  any  portion 
of  the  bridge  fund  levied  upon  property  within  such  corpora- 
tions, on  all  state  and  county  roads,  free  turnpikes,  improved 
roads,  transferred  and  abandoned  turnpikes  and  plankroads, 
which  are  of  general  and  public  utility,  running  into  or 
through  any  such  village  or  city.1      [69  v.  61,  §  1.] 


(1)  See  notes  to  §  860  R.  S. 
supra. 

Scope  of  power. —  Bridge  con- 
structed must  not  interfere  with 
navigation.  Hickok  v.  Hine,  23  O. 
S.  523. 


Whether  bridge  is  necessary  in 
particular  case  is  to  be  determined 
by  the  commissioners  and  the 
courts  will  not  interfere  with  their 
exercise  of  discretion.  State  ex  rel. 
v.   Commissioners,   49   O.   S.    301. 


Sec.  2824  R.  S.  [Levy  of  taxes  for  county  road  and  bridge  pur- 
poses.] The  commissioners,  at  their  March  or  June  sessions, 
annually,  may  levy  on  each  dollar  of  valuation  of  taxable  prop- 
erty within  their  county,  for  road  and  bridge  purposes,  as 
follows;  In  a  county  where  the  valuation  of  taxable  property 
exceeds  eighty  millions  and  does  not  exceed  one  hundred  and 
twenty  millions  dollars,  five-tenths  of  a  mill ;  where  the  amount 
exceeds  fifty  millions  and  does  not  exceed  eighty  millions, 
seven-tenths  of  a  mill;  where  the  amount  exceeds  twenty  mil- 


ROADS    IN    MUNICIPAL    LIMITS.  757 

lions  and  does  not  exceed  fifty  millions  of  dollars,  one  mill  and 
one-tenth ;  where  the  amount  exceeds  ten  millions  and  does  not 
exceed  twenty  millions  of  dollars,  one  mill  and  five-tenths; 
where  the  amount  exceeds  five  millions  and  does  not  exceed  ten 
millions  of  dollars,  three  mills ;  and  where  the  amount  is  less 
than  five  millions  of  dollars,  five  mills  and  five-tenths ;  and 
of  the  tax  so  levied,  the  commissioners  shall  set  apart  such 
portion,  as  they  may  deem  proper,  to  be  applied  to  the  building 
and  repair  of  bridges,  which  portion  so  set  apart  shall  be  called 
a  bridge  fund,  and  shall  be  entered  on  the  duplicate  in  a  sepa- 
rate column,  and  shall  be  collected  in  money,  and  expended, 
except  as  may  be  otherwise  provided  by  law,  under  the  directions 
of  the  commissioners  in  building  bridges  and  culverts,  or  in 
repairing  the  same; 

[Hamilton  county.]  provided,  that  in  any  county  containing 
a  city  of  the  first  grade  of  the  first  class,  where  the  valuation 
of  taxable  property  exceeds  two  hundred  millions  of  dollars, 
the  commissioners  of  said  county  may  levy  on  each  dollar  of 
valuation  of  taxable  property  within  said  county,  for  bridge 
purposes  exclusively,  not  to  exceed  one-half  of  a  mill,  which 
shall  be  collected  in  money  and  placed  by  the  auditor  to  the 
credit  of  the  bridge  fund  of  the  county,  and  the  same  shall  be 
expended  by  the  commissioners  in  building  bridges  and  culverts, 
and  in  repairing  and  making  fills  and  approaches  to  the  same  in 
the  townships  outside  of  the  corporate  limits  of  said  city,  and 
for  no  other  purpose  whatever; 

[Payment  to  Cincinnati.]  except  that  a  portion  of  said  fund 
collected  in  the  said  county,  amounting  to  not  less  than  a  levy 
of  one-sixth  of  a  mill  on  each  dollar  of  valuation  of  the  taxable 
property  within  said  county  in  all  cases  where  the  board  of 
legislation  of  said  city  of  the  first  grade  of  the  first  class  shall 
demand  it,  shall  be  paid  into  the  city  treasury  of  said  city 
and  shall  be  expended  by  the  board  of  administration  of  said 
city,  for  the  purpose  of  building  and  repairing  of  bridges 
within  the  corporate  limits  of  the  same; 

[Special  tax  to  restore  important  bridge.]  provided,  further, 
that  in  case  an  important  bridge  belonging  to  or  maintained 
by  any  county  has  been  or  shall  be  destroyed  or  become  danger- 
ous to  public  travel  by  decay  or  otherwise,  and  the  restoration 
thereof  is  deemed  necessary  for  public  accommodation,  the 
commissioners  may  levy  a  special  tax  for  that  purpose,  not 
exceeding  one  mill  and  five-tenths,  the  proceeds  of  which  shall 
be  applied  solely  to  such  restoration ; 


758  THE    OHIO    MUNICIPAL    CODE. 

[Anticipation  thereof.]  and  the  commissioners  may  anticipate 
the  collection  of  such  special  tax  by  borrowing  any  sum  not 
exceeding  the  amount  so  specially  levied  or  to  be  levied,  at  any 
rate  of  interest  not  exceeding  six  percentum,  and  issue  notes 
or  bonds  therefor,  payable  upon  the  collection  of  such  special 
tax; 

[Cleveland  and  cities  of  second  class.]  provided,  further, 
that  in  all  cities  of  the  second  grade  of  the  first  class,  and  all 
cities  of  the  second  class  one-half  of  the  proportion  of  said 
bridge  fund  collected  upon  the  property  within  said  cities,  in 
all  cases  where  the  city  council  shall  demand  it,  shall  be  paid 
into  the  city  treasury,  and  shall  be  expended  by  such  city  for 
the  purpose  of  building  and  repairing  bridges; 

[Marietta.]  and  provided  further,  that  in  cities  having  at  the 
last  federal  census,  or  at  any  subsequent  federal  census  a  pop- 
ulation of  8,273,  the  whole  of  the  proportion  of  said  bridge 
fund  collected  upon  the  property  within  said  city  shall  upon 
demand  of  the  council  of  said  city  therefor  be  paid  into  the 
treasury  of  said  city,  and  shall  be  expended  by  said  city  for 
the  purpose  of  building  and  maintaining  bridges  therein ; 

[Montgomery  county.]  provided  further,  that  the  commis- 
sioners of  Montgomery  county  shall  levy  not  exceeding  one  mill 
and  six-tenths  for  road  and  bridge  purposes,  and  that  said  levy 
shall  only  be  on  property  subject  to  taxation  outside  the  city 
of  Dayton,  and  the  proceeds  of  such  levy  shall  be  applied  ex- 
clusively to  roads  and  bridges  outside  of  said  city ; 

[Dayton.]  and  the  council  of  said  city  may  annually  levy  on 
the  taxable  property  within  the  same,  for  bridge  purposes,  a 
tax  of  one  mill  and  one-tenth  in  addition  to  the  total  aggregate 
of  taxation  now  authorized  by  said  council,  to  be  expended  for 
building  and  repairing  bridges  within  said  city ; 

[Trumbull  county.]  and  provided  further,  that  the  commis- 
sioners of  Trumbull  county  may  levy  not  to  exceed  the  rate  al- 
lowed by  law  for  road  and  bridge  purposes,  and  that  said  levy 
shall  only  be  on  property  subject  to  taxation  outside  of  the  city 
of  Warren,  and  the  proceeds  of  such  levy  shall  be  applied  to 
road  and  bridge  purposes  exclusively  outside  of  said  city ; 

[Warren.]  and  the  council  of  said  city  may  annually  levy 
on  each  dollar  of  valuation  of  taxable  property  within  said  city 
for  bridge  purposes,  one  and  five-tenths  of  a  mill,  in  addition 
to  the  total  aggregate  of  taxation  now  or  hereafter  authorized 
by  law,  to  be  expended  for  building  and  repairing  bridges 
within  said  city ;  except  that  in  the  event  that  the  commissioners 


ROADS    IN    MUNICIPAL    LIMITS.  759 

of  the  county  transfer  from  the  road  and  bridge  fund  to  some 
other  fund,  the  whole  or  some  part  of  the  six-tenths  of  a  mill 
as  now  allowed  by  law,  the  council  of  said  city  shall  make  a 
like  transfer  to  the  same  county  fund ;  and  the  council  of  said 
city  may  anticipate  the  whole  or  some  part  of  the  annual  levy 
f or*  said  purposes  for  the  period  o  f  ten  years  or  less,  by  borrow- 
ing a  sum,  not  exceeding  twenty  thousand  dollars,  at  a  rate  of 
interest  not  exceeding  six  percentum,  and  issue  bonds  there- 
for, payable  on  the  collection  of  said  tax. 

[Expiration  of  proviso.]  Said  last  proviso  relating  to  the 
city  of  Warren  in  said  Trumbull  county  shall  expire  by  limi- 
tation after  twelve  years  from  the  time  it  becomes  a  law,  and 
said  city  shall  again  become  a  part  of  the  county  for  bridge 
purposes  under  the  general  law; 

[Holmes  county.]  provided  further,  that  the  commissioners 
of  Holmes  county  at  their  March  or  June  sessions  shall  levy  on 
all  the  taxable  property  of  said  county,  the  amount  now  au- 
thorized by  law  for  road  and  bridge  purposes  to  be  used  on 
roads  and  bridges,  and  the  commissioners  of  Holmes  county 
may  turn  over  such  portion  of  the  taxes  so  raised  for  roads 
and  bridges  on  the  taxable  property  in  said  incorporated  vil- 
lage of  Millersburg,  said  county,  to  the  council  of  said  incor- 
porated village  for  road  and  bridge  purposes  as  they  may  deem 
proper,  and  the  commissioners  of  said  county  on  the  demand 
of  said  council  of  the  incorporated  village  of  Millersburg  shall 
turn  over  to  the  treasury  of  said  village  the  pro  rata  share  of 
the  taxes  levied  in  1899.1  [94  v.  172;  91  v.  12,  128,  196;  89 
v.  272 ;  88  v.  508 ;  84  v.  224 ;  E.  S.  of  1880 ;  74  v.  92,  §  2 ;  73 
v.  11,  §§  1,  2;  (S.  &  S.  666;  S.  &  C.  1317).] 

(1)   Rights  of  municipalities.—  Oo.  v.  R.  R.  Co.,  43  0.  S.  451. 

See  State  ex  rel.  v.  Commissioners,  Section    cited,    State    ex    rel.    v. 

4  N.  P.  343.  Pmling,   1    C.   C.  at  490. 

Use  of   fund   received,    see   Perry 

Sec.  4825  U.S.  [When  road  may  be  extended  to  village.] 
When  a  free  turnpike  road  in  progress  of  construction  ter- 
minates within  one  mile,  by  way  of  a  public  road,  of  any  such 
village,  the  council  of  such  village  shall  have  the  same  power 
to  levy  a  tax  and  issue  bonds  to  aid  in  the  construction  of  such 
free  turnpike  road  that  it  would  have  if  the  road  terminated 
in  the  village ;  and  if  the  county  commissioners  having  in  charge 
the  construction  of  such  road  accept  such  bonds,  such  free  turn- 


760  THE    OHIO    MUNICIPAL    CODE. 

pike  road  shall  be  deemed  to  be  extended,  by  way  of  the  public 
road  before  mentioned,  to  the  corporate  limits  of  the  village; 
and  the  commissioners  shall  make  and  publish  an  order  to  that 
effect,  and  thereupon  the  commissioners  shall  improve  such  ex- 
tension of  such  free  turnpike  road,  in  the  same  manner  as  the 
other  parts  of  the  same.      [65  v.  180,  §  1 ;  S.  &  S.  686.] 

Sec.  4850  R.  S.  [Cities  and  villages  may  assist  in  constructing 
improved  road.]  When  any  road  to  be  improved  under  and  by 
virtue  of  this  chapter  1  begins  or  terminates  in  a  city  or  village, 
the  corporate  authorities  thereof  may,  upon  the  recommendation 
of  the  county  commissioners,  if  they  deem  the  same  expedient, 
agree  to  pay  in  the  bonds  of  such  city  or  village,  in  the  man- 
ner and  proportions  described  in  sections  forty-eight  hundred 
and  forty-six,2  in  addition  to  any  amount  that  may  be  as- 
sessed 3  upon  the  real  property  within  such  corporation  by  vir- 
tue of  the  provisions  of  this  chapter,  an  amount  not  exceed- 
ing one-fifth  of  the  entire  cost  of  the  road ;  but  the  entire  tax 
to  be  imposed  for  road  purposes,  by  virtue  of  this  section,  shall 
not  in  any  year  exceed  five  mills  on  the  dollar  of  the  taxable 
property  in  the  corporation.  (64  v.  80,  §  9.)  [1880,  March 
9;  77  v.  55,  56;  Eev.  Stat  1880;  (S.  &  S.  672).] 

(1)  Chapter  referred  to  here  is  (3)   What  lots  and  lands  may 

chapter      relating     to     Two     Mile  be    assessed. —  See    Commissioners 

Assessment  Pikes.  v.  Young,  36  O.  S.  288. 

(2)  Section  referred  to. —  §  Section  cited,  Lewis  v.  Laylin,  46 
4846     R.     S.     gives     commissioners  O.  S.  663,  673. 

power    to   issue   bonds  to  meet   ex- 
pense   of   road   improvements. 

Sec,  4851 It.  S.  [Cities  in  adjoining  county  may  aid.]  When 
it  is  desirable  or  expedient  to  continue  any  road  contemplated 
under  this  chapter,  into  or  through  an  adjoining  county,  the 
city  council  of  any  city  of  the  first  or  second  class  may,  upon 
the  application  and  recommendation  of  the  county  commis- 
sioners of  such  county,  if  the  council  deem  the  same  promo- 
tive of  the  general  interests  of  such  city,  aid  in  the  construc- 
tion of  the  road  to  an  extent  not  exceeding  one-fifth  of  its  cost, 
the  payment  of  the  same  to  be  provided  for  in  the  manner  and 
proportions  described  in  section  forty-eight  hundred  and  forty- 
six.     [64  v.  80,  §  10;  S.  &  S.  672.] 

Sec.  1448c  R.  S.  [Meetings  of  township  trustees,  road  su- 
perintendents and  street  commissioners  with  county  commis- 
sioners; compensation  for  attending.]  The  board  of  county 
commissioners  of  each  county  shall,  one  day  in  each  year,  call 
a  meeting  at  the  county  seat  and  notify  each  township  trustee 
holding  office  in  said  county  and  each  road  superintendent  as 
herein  provided  for,  and  each  street  commissioner  employed 


ROADS  IN  MUNICIPAL  STREETS.  761 

by  any  municipality,  to  attend  said  meeting  for  the  purpose 
of  receiving  instruction  and  direction  as  to  the  care  and 
maintenance  of  the  public  roads.  Each  township  trustee  and 
road  superintendent  and  street  commissioner  attending  said 
meeting  shall  receive  one  dollar  and  fifty  cents,  and  no  more, 
for  each  day  of  actual  attendance,  the  township  trustees  and 
road  superintendents  to  be  paid  out  of  the  general  fund  of 
their  townships,  and  the  street  commissioner  to  be  paid  out 
of  the  general  fund  of  the  municipality.  [1906,  April  16,  98 
v.  332.] 

Sec.  1448d  R.  S.  [Contracts  for  repair  or  maintenance  of 
public  roads  or  streets;  notice.]  The  commissioners  of  any 
county,  the  trustees  of  any  township  or  the  board  of  public 
service  of  any  municipality  may  contract  with  any  person, 
firm  or  corporation  for  the  repair  or  maintenance  of  any  public 
road  or  street  within  their  respective  political  subdivisions. 
Such  contracts  may  be  for  furnishing  material  and  repairing 
or  for  any  purpose  necessary  to  maintain  any  street,  road  or 
roads.  Such  contract  shall  not  be  made  until  an  advertise- 
ment "containing  plans  and  specifications  be  published  two 
weeks  in  a  newspaper  of  general  circulation  published  within 
the  political  subdivision  wherein  such  road  is  situate  or  in  a 
paper  of  general  circulation  within  the  county  and  posting 
copies  of  same  in  two  public  places,  for  two  weeks,  near  where 
the  road  is  situate.     [1906,  April  16,  98  v.  332.] 

Sec.  2830  R.  S.  [Payment  of  road  tax;  expenditure  of  road 
fund.]  Any  person  charged  with  a  road  tax  shall  pay  the 
same  in  money  to  the  county  treasurer  in  the  same  manner. as 
other  taxes  are  collected  and  paid.  All  road  taxes  paid  to  or 
collected  by  the  county  treasurer  shall  be  paid  over  to  the 
treasurer  of  the  township  or  municipal  corporation  from  which 
the  same  were  collected,  and  shall  be  expended  on  the  public 
roads  and  in  building  and  repairing  bridges  in  the  township 
and  municipal  corporation  from  which  the  taxes  were  collected 
under  the  direction  of  the  trustees  of  the  proper  township  or 
council  of  such  municipal  corporation;  and  all  funds  hereto- 
fore levied  for  road  purposes  and  not  expended,  shall  be  ex- 
pended by  the  trustees  of  the  township  or  council  of  the  mu- 
nicipal corporation  from  which  the  same  were  collected  as 
other  taxes  collected  under  the  provisions  of  this  title.  [1906, 
April  16,  98  v.  333;  77  v.  184;  74  v.  92.] 

Sec.  4747  R.  S.  [Roads  on  state  or  township  lines.]  A  road 
superintendent  of  a  road  district  bordering  on  the  state  line 
between  Ohio  and  adjoining  state  may,  when  a  public  high- 
way has  been  located  upon  such  state  line  in  accordance  with 
and  under  the  provisions  of  the  laws  of  the  state  of  Ohio, 
apply  the  labor  of  his  district  upon  said  road,  in  the  same 
manner  as  on  roads  located  within  the  boundaries  of  the  state ; 
and  in  case  any  public  road  is  or  may  be  established  as  a  part 


762  THE    OHIO    MUNICIPAL    CODE. 

of  the  line  or  boundary  of  any  township  or  municipal  corpora- 
tion, the  trustees  of  such  adjoining  townships,  and  council  of 
such  corporations,  as  the  case  may  be,  shall  meet  at  some 
convenient  place  as  soon  after  the  first  Monday  of  March  as 
convenient,  and  apportion  such  road  between  the  townships, 
or  township  and  corporation,  as  justice  and  equity  may  re- 
quire, and  the  trustees  of  the  respective  townships,  and  coun- 
cil of  the  corporation,  shall  cause  the  road  to  be  opened  and 
improved  accordingly,  and  shall  thereafter  cause  their  respec- 
tive portions  to  be  worked  and  kept  in  proper  repair.  [1906, 
April  16,  98  v.  339;  94  v.  184;  65  v.  14.] 

Sec.  4906  R.  S.  [Parts  of  roads  in  cities  and  villages  to  be 
repaired.]  The  commissioners  shall  keep  in  repair  such  por- 
tions of  such  roads1  within  their  respective  counties  as  have 
since  their  completion  been  included,  or  may  hereafter  be  in- 
cluded, within  the  corporate  limits  of  any  city  or  village  in 
such  counties,  to  points  therein  where  the  sidewalks  have  been 
curbed  and  guttered,  and  no  further.     [75  v.  32,  §  2.] 

• 

(1)    Such   roads   refers  to  "Improved  Roads"  defined  in  §  4876  R.S. 


3.     BRIDGE,  TURNPIKE  AND  AVENUE  COMPANIES. 

Sec.  3537.  [Powers  of  bridge  companies.]  A  company  in- 
corporated to  construct  a  bridge  over  any  stream  of  water  in 
this  state  shall  either  own  the  bank  on  each  side  of  the  stream 
where  it  is  proposed  to  erect  its  bridge,  or  obtain  the  consent 
of  the  owner  or  owners  thereof,  in  writing,  to  occupy  the 
same ;  it  may  purchase,  or  appropriate  in  the  manner  provided 
by  law,  and  hold,  such  real  estate  as  will  be  required  for  the 
site  of  the  bridge,  and  suitable  avenues  or  approaches  leading 
thereto,  may  use  so  much  of  any  public  street,  road,  or  avenue 
as  is  necessary  for  landings  and  abutments,  and  may  appro- 
priate in  the  manner  provided  by  law  any  rights  or  franchises 
necessary  in  the  construction  of  the  bridge ;  and  the  provisions 
of  section  thirty-four  hundred  and  ninety-two  shall  be  appli- 
cable to  such  companies.  [69  v.  185,  §  55 ;  53  v.  180,  §  1 ;  S.  &  C. 
338.] 

Sec.  3540.  [May  make  and  enforce  regulations.]  All  bridge 
companies  and  owners  are  invested  with  full  power  and  au- 
thority to  make  and  enforce  any  rule  or  regulation  deemed 
necessary  or  requisite  to  preserve  and  protect  their  property 
and  collect  their  tolls,  and  may  prevent  any  person  from  cross- 
ing any  bridge  owned  by  them  on  foot,  or  by  riding,  or  driving 
any  team  or  vehicle,  or  from  driving  any  stock  thereon,  who 
fails  to  pay  the  regular  fare  when  demanded;  and  the  police 


BRIDGE  AND  TURNPIKE   COMPANIES.  763 

or  watchman  of  any  such  bridge  shall  have  all  the  power  and 
authority  -of  -policemen  of  cities,  and  may  arrest  any  person 
who  violates  the  law,  or  the  rules  of  the  company  or  person 
owning  the  bridge,  without  warrant,  at  or  upon  such  bridge, 
and  take  him  before  the  proper  civil  authority  to  be  dealt 
with  according  to  law.     164  v.  128,  §  5;  S.  &  S.  57.] 

Sec.  3542.    [Further  powers  of  Ohio  river  bridge  companies.] 

Such  company  may  purchase,  or  appropriate  in  the  manner 
provided  by  law,  and  hold  such  real  estate  as,  in  the  opinion 
of  its  directors,  will  be  required  for  the  site  of  the  bridge,  and 
of  suitable  avenues  or  approaches  leading  thereto,  and  may 
locate  the  same  on,  or  construct  the  same  over,  any  public 
street,  road,  avenue,  or  alley;  provided,  that  in  constructing 
the  same  over  any  public  street,  road,  avenue  or  alley,  the 
said  bridge  shall  be  constructed  at  such  height  as  not  to  inter- 
fere with  travel  passing  on,  over  or  along  the  same;  and  pro- 
Added  further,  that  no  pier,  or  other  obstruction,  shall  be  con- 
structed or  built  upon  such  street,  road,  avenue  or  alley,  with- 
out the  consent  of  the  municipal  or  other  authorities  having 
charge  or  control  of  the  same.  And  the  company  shall  be 
responsible  for  injuries  done  to  private  property,  adjacent  or 
near  to  such  bridge,  by  its  elevation  and  construction,  which 
may  be  recovered  in  a  civil  action  brought  by  the  owner,  at 
any  time  within  two  years  from  the  completion  thereof.1  [1889, 
February  8:  86  v.  25;  Rev.  Stat.  1880;  65  v.  55,  §5;  (S.  &  S. 
203).]. 

( 1 )    Ohio    River   bridge    com-  thorized  to  construct  and  maintain 

panies. — By   Section    3541  R.   S.   a  such   bridge   with    suitable   avenues 

company    organized   to   construct    a  and  approaches  leading  thereto, 
bridge  over  the  Ohio  River   is  au- 


Sec.  3482  R.  S.  [Repair  of  roads  within  municipalities.]     If 

a  company  *  fail  to  keep  any  part  of  its  road  within  the  limits 
of  a  municipal  corporation  in  repair  for  five  days  successively, 
the  proper  authority  of  such  municipal  corporation  may  pass  a 
resolution  requiring  such  company  to  repair  the  same  within 
ten  days  after  the  service  of  a  copy  of  such  resolution  on  the 
gate-keeper  nearest  such  municipal  corporation,  and  the  com- 
pany shall  declare  its  intention  to  abandon  or  repair  the  same ; 
in  case  of  a  failure  or  refusal  so  to  do  within  thirty  days,  or  in 
case  of  a  failure  or  refusal  to  repair  in  ninety  days,  the  mu- 
nicipal corporation  may  file  a  complaint  in  writing,  with  a  copy 
of  the  resolution,  in  the  court  of  common  pleas  of  the  county, 
describing  the  portion  of  the  road  required  to  be  repaired,  and 


764  THE    OHIO    MUNICIPAL    CODE. 

the  court,  or  any  judge  thereof,  shall  appoint  two  disinter- 
ested persons  as  inspectors,  who  shall  review  the  portion  of 
the  road  complained  of,  and  return  their  finding  thereon,  under 
oath,  to  the  court,  within  ten  days;  and  if  they  find  the  com- 
plaint to  be  true,  such  portion  of  the  road  shall  be  declared 
abandoned  by  the  company,  and  the  municipal  corporation  may 
improve  or  repair  the  same,  and  assess  and  collect  the  costs  of 
such  improvement  or  repairs  in  the  same  way  as  is  provided 
by  law  in  relation  to  the  improvement  of  streets.2  [51  v. 
464,  §  1;  S.  &  C.  333.] 

(1)   Company,  refers  to  turnpike  (2)    See  MadisonviJle  v.  Tp.  Co., 

or   plank   road   company.      (§    3472       17  B.  30. 
R.   S.) 

Sec.  3483  It.  S.  [Proceedings  to  enforce  repair.]  Notice  of  the 
complaint,  and  of  the  appointment  and  time  of  meeting  of  the 
inspectors,  shall  be  served  on  the  president  or  other  officer  of 
the  company,  or  at  its  principal  office,  five  days  before  the 
meeting  of  the  inspectors ;  and  if  such  service  be  made  by  any 
person  other  than  the  sheriff,  it  shall  be  verified  by  the  oath  of 
the  person  making  the  same;  no  toll  shall  be  received  at  the 
gates  for  the  portion  of  the  road  so  declared  abandoned ;  and  if 
the  keeper  of  any  gate  demand  and  receive  toll  for  the  same,  he 
shall  be  liable  to  pay  the  sum  of  five  dollars  to  the  party  injured, 
to  be  recovered  by  civil  action  before  any  justice  of  the  peace 
having  jurisdiction;  [and]  the  costs  of  the  proceeding  on  the 
complaint  shall  be  paid  by  the  company,  if  the  action  be  sus- 
tained, but  if  not  sustained  they  shall  be  paid  by  the  municipal 
corporation,  and  execution  shall  issue  therefor  as  in  other  cases. 
[51  v.  464,  §  2 ;  S.  &  C.  334.] 

Sec.  3491  R.  S.  [When  municipal  limits  are  extended  beyond 
a  toll-gate.]1  No  company  shall  hereafter  erect  a  toll-gate  and 
collect  tolls  within  the  limits  of  any  city  or  village,  or  within 
eighty  rods  of  such  limits;  and  where  by  the  creation  of  a 
village,  or  the  extension  of  the  limits  of  a  city  or  village,  a  toll- 
gate  is  brought  within  such  limits,  or  within  eighty  rods  thereof, 
the  company  shall  remove  the  toll-gate  to  a  point  on  its  road 
not  nearer  to  such  limits  than  eighty  rods,  and  so  much  of  its 
road  as  is  included  within  the  limits  of  such  city  or  village 
shall  become  a  public  street,  and  be  kept  in  repair  as  other 
public  streets,  but  no  toll  shall  be  taken  thereon ;  2  but  compensa- 
tion shall  be  made  to  the  company  for  the  damages  it  will  sus- 
tain by  reason  of  such  removal  of  its  toll-gate,  and  surrender  of 


TURNPIKE  AND  AVENUE  COMPANIES.  765 

such  part  of  its  road,  and  if  the  company  and  the  proper  au- 
thorities of  the  city  or  village  do  not  agree  thereon,  the  dam- 
ages shall  be  ascertained  in  proceedings  which  the  municipal 
authorities  shall  commence,  to  appropriate  such  property  to 
the  use  aforesaid,  in  the  manner  provided  by  law  for  the  ap- 
propriation of  property  by  municipal  corporations,  or,  in  de- 
fault of  such  agreement,  or  the  institution  of  such  appropria- 
tion proceedings,  the  company,  at  any  time  after  the  removal 
of  the  toll-gate,  may  recover  the  same  from  the  city  or  village, 
by  civil  action.3  [66  v.  36,  §  1 ;  75  v.  90,  §  34 ;  (S.  &  S.  841 ; 
S.  &  C.  339).] 

(1)  Other  provisions.  —  Power  ing  within  its  limits.     C.  &  W.  Tp. 
of    council     when    turnpike    comes  Co.  v.  Cincinnati,  2  B.   126. 
within  municipal  limits,  see  §  2643  Municipality  does  not  have  right 
R.  S.  et  seq.,  page  123.  to  lay  water  and  sewer  pipes  under 

(2)  Rights  of  turnpike  com-  surface  of  turnpike,  without  con- 
pany. —  See  notes  under  §  2643  R.  demning.  C.  &  A.  Tp.  Co.  v.  Avon- 
S.,  page  123,  and  under  §  2648  R.  S.,  dale,  17  B.  294. 

page  126.  Municipality  may  be  mandamused 

( 3 )  Condemnation. —  A  suit  un-  at  suit  of  one  traveling  over  pike, 
der  this  section  by  turnpike  com-  to  commence  appropriation  proceed- 
pany,  is  in  the  nature  of  a  condem  ings.  Gates  v.  Tp.  Co.  4  N.  P.  235. 
nation.  Tp.  Co.  v.  Mt.  Healthy,  66  But  injunction  will  not  lie  to  pre- 
O.   S.  660    (unreported).  vent  collection  of  tolls.     lb. 

Municipality  cannot  condemn  less  As  to  method  of  ascertaining  dam- 

than  the  whole  of  the  turnpike  ly-      ages  in  such  condemnation,  see  note 

under  §  2643  R.  S.,  page  123. 

Sec.  3492  R.  S.  [May  sell  bridge  or  road  in  such  limits  to  city 
or  village.]  A  company,  any  part  of  whose  road  or  bridge  is, 
or  hereafter  becomes,  embraced  within  the  corporate  limits  of 
a  city  or  village  may  contract  with  the  proper  authorities  of 
such  city  or  village,  or  of  the  township  or  county  in  which  the 
same  is  situate,  for  the  disposal,  release,  and  abandonment  of 
such  part  of  its  road  or  bridge,  for  such  compensation  and 
upon  such  terms  as  may  be  agreed  upon  between  the  company 
and  such  authorities;  and  any  such  contract  heretofore  made 
shall  be  as  good  and  valid  as  if  made  under  and  by  virtue  of 
this  section.1      [53  v.  180,  §  1 ;  S.  &  C.  338.] 

(1)  Section  cited.  State  ex  rel. 
v.  Extension  Lower  River  Road,  21 
C.  C.  662,  667. 

Sec.  3825  R.  S.  [Avenue  companies  in  certain  counties ;  when 
consent  of  authorities  necessary.]    When  in  laying  out  any  such 


766  THE    OHIO    MUNICIPAL    CODE. 

avenue  '  it  becomes  necessary  to  run  through  or  along  the  line 
of  any  village,  the  board  of  directors  of  the  avenue  company 
shall  obtain  the  consent  of  the  council  of  such  village  to  the 
laying  out  of  such  avenue  through  or  along  the  territory  over 
which  thev  have  supervision  or  control.  [53  v.  46,  §  4;  S.  & 
C.  343.] 

(I)   Avenues       referred       to. —  ed  by  avenue  companies  authorized 

Sections  carried  here  are  a  part  of  to   construct  such  thoroughfares   in 

Chap.    17,   Title   II,  of   Part  II,   of  counties    containing    not    less    than 

Bates'   Revised    Statutes.     The  ave-  one  hundred  thousand  inhabitants, 
nues  referred  to  are  those  construct- 

Sec.  3826  R.  S.     [Authorities  may  surrender  roads  to  company.] 

If,  on  application  being  made  to  the  council  of  a  village,  they 
are  of  opinion  that  the  public  good  demands  the  laying  out 
of  such  avenue,  they  may  give  their  written  consent  to  the 
laying  out  and  construction  of  the  same,  which  shall  have  the 
force  and  effect  of  a  full  and  complete  release  of  all  authority 
over  tlie  avenue  within  their  corporate  jurisdiction,  and  the  di- 
rectors may  lay  out  and  construct  the  avenue  through  the  terri- 
tory of  such  village,  and  control  the  same  in  all  respects  as 
though  the  village  did  not  exist.  [53  v.  46,  §  5  ;  S.  &  C.  343.] 
Sec.  3826a  R.  S.  [Power  to  condemn  avenues  belonging  to  av- 
enue companies  within  corporate  limits.]  Where  avenue  com- 
panies.  have  been  or  may  hereafter  be  organized,  and  have  con- 
structed and  operated,  or  may  hereafter  construct  and  operate 
an  avenue  or  avenues  in  a  county  containing  a  city  of  the  first 
grade  of  the  first  class,  the  board  of  public  improvements  of 
such  city  of  the  first  grade  of  the  first  class,  may,  by  resolution, 
declare  it  essential  or  necessary  to  the  interest  of  said  city  that 
so  much  of  any  such  avenue  as  may  be  within  the  corporate 
limits  of  the  city  should  belong  to  the  city  for  the  purpose  of 
a  public  street;  and  thereupon  if  the  company  owning  such 
avenue  and  the  board  of  public  improvements  of  the  city  are 
unable  to  agree  upon  the  amount  of  compensation  to  be  paid 
for  so  much  of  said  avenue  as  lies  within  the  city,  the  board 
of  public  improvements  of  such  city  and  the  company  owning 
Buch  avenue  may  submit  the  question  of  the  amount  to  be  paid 
for  so  much  of  such  avenue  as  lies  within  the  limits  of  such 
city  to  arbitration  in  the  following  manner,  to-wit :  The  board 
of  public  improvements  of  such  city  to  select  one  disinterested 
person,  the  company  owning  such  avenue  to  select  another  dis- 
interested person,  and  these  two  [to]  select  the  third  disinter- 
ested person  to  act  as  arbitrators  and  all  such  arbitrators  shall 


TURNPIKE    AND    AVENUE    COMPANIES.  76? 

be  resident  freeholders  of  such  city;  and  the  amount  agreed 
upon  by  all  these  three  arbitrators  shall  be  binding  on  both 
such  city  and  such  company;  and  in  case  the  arbitrator  ap- 
pointed by  the  board  of  public  improvements  of  such  city  and 
the  arbitrator  appointed  by  such  company  cannot  agree  upon  a 
third  arbitrator,  or  all  three  of  such  arbitrators  fail  to  agree  on 
the  amount  to  be  paid  for  so  much  of  such  avenue  as  lies  within 
the  city  limits,  or  in  case  the  board  of  public  improvements  of 
such  city,  or  the  company  owning  such  avenue  refuse  to  sub- 
mit to  arbitration  the  question  of  the  amount  to  be  paid  for  such 
part  of  such  avenue  as  lies  within  the  limits  of  such  city,  then 
the  board  of  public  improvements  of  such  city  may  proceed  to 
condemn  and  appropriate  so  much  of  such  avenue  as  lies  within 
the  city  limits,  for  public  purposes,  in  the  same  manner  in 
which  other  property  is  condemned  and  appropriated  by  mu- 
nicipal corporations,  except  that  the  resolution  of  such  board 
of  public  improvements  deeming  it  necessary  to  condemn  shall 
take  the  place  and  stand  in  lieu  of  the  resolution  of  council  re- 
quired by  sections  2234,  2235  and  2236,  Revised  Statutes  of 
Ohio.      [87  v.  241 ;  85  v.  152.] 

Sec.  3826b  R.  S.  [Issue  and  sale  of  bonds.]  When  the  amount 
of  compensation  to  be  paid  for  such  avenue  appropriated  under 
the  preceding  section  shall  have  been  ascertained  either  by 
agreement  of  the  parties,  by  decision  of  the  arbitrators  or  by  the 
verdict  of  a  jury  in  the  proceedings  instituted  for  the  purpose, 
a  fund  shall  be  provided  for  the  payment  of  such  compensation 
together  with  the  costs  and  expenses  of  such  proceedings  as 
may  have  been  had,  by  issuing  the  bonds  of  such  city  for  the 
amount  thus  ascertained ;  and  it  shall  be  the  duty  of  the  board 
of  public  improvements  of  such  city  to  issue  said  bonds.  Said 
bonds  shall  be  made  payable  at  such  time  and  shall  bear  in- 
terest at  such  rate  not  to  exceed  four  (4)  per  centum  per 
annum  as  said  board  of  public  improvements  shall  determine; 
said  bonds  shall  be  signed  by  the  president  of  the  board  of 
public  improvements  and  the  mayor  of  such  city,  and  be  attested 
by  the  comptroller  of  such  city,  and  shall  be  secured  by  a  pledge 
of  the  faith  of  such  city  and  a  tax,  which  it  shall  be  the  duty 
of  the  council  of  such  city  annually  to  levy  upon  the  taxa- 
ble property  of  such  city,  and  certify  the  same  to  the  county 
auditor,  upon  a  certificate  to  that  effect  from  the  trustees  of 
the  sinking  fund  of  such  city,  as  to  the  amount  necessary  to 
pay  the  interest  thereon  and  to  provide  a  sinking  fund  for  the 
final  redemption  of  said  bonds.  Said  tax  shall  be  in  addition 
to  the  amount  now  authorized  to  be  levied  for  municipal  pur- 


768  THE    OHIO    MUNICIPAL    CODE. 

poses.  Said  bonds  shall  be  sold  to  the  highest  bidder  by  said 
board  of  public  improvements  at  not  less  than  their  par  value, 
after  advertising  the  same  for  not  less  than  four  consecutive 
weeks,  on  the  same  day  of  the  week,  in  some  newspaper  ot 
general  circulation  in  such  city.      [87  v.  242;  85  v.  152,  153.] 

4.     SEWERAGE  COMPANIES. 

Sec.  3871 E.  S.  [Sewerage  companies.]  A  company  organ- 
ized for  the  purpose  of  draining  the  streets,  alleys,  lots,  com- 
mons, wharves,  landings,  or  buildings  of  any  city  or  village  in 
this  state,  may  construct  and  maintain  sewers  and  drains,  and 
lay  conductors  or  pipe  for  conveying  water  and  other  liquid 
matter  from  the  lots,  houses,  and  streets,  through  and  under  the 
streets,  sidewalks,  public  highways,  alleys,  commons,  wharves, 
or  landings  of  any  city  or  village  in  this  state;  upon  applica- 
tion by  such  company  the  council  of  any  city,  or  the  trustees 
of  any  village,  may  grant  to  it  the  privilege  of  exercising  its 
corporate  powers  within  the  limits  of  such  city  or  village,  for 
such  term  of  years,  and  upon  such  conditions  and  limitations, 
as  may  be  deemed  expedient ;  and  the  city  council,  or  the  coun- 
cil of  the  village,  may  require  from  the  company  such  reasona- 
ble security  as  they  deem  necessary  for  the  faithful  perform- 
ance of  the  duties  imposed  upon  it  by  law;  but  no  grant  shall 
be  made  to  any  company,  and  no  power  or  privilege  shall  be 
conferred  upon  or  exercised  by  any  company,  which  will  in- 
terfere with  the  rights  of  any  other  corporation,  or  any  person, 
and  no  person  shall  be  taxed  without  his  consent  for  any  drain- 
age or  sewerage  constructed  by  any  such  company;  and  such 
companies  shall  be  liable  for  all  damages  occasioned  by  their 
acts,  neglects,  or  defaults  to  the  rights  of  persons  and  other 
corporations.      [53  v.  137,  §  5 ;  S.  &  C.  341.] 

Sec.  3872  R.  S.  [When  municipality  must  buy  out  company.] 
When  a  city  or  village  which  has  granted  to  any  such  com- 
pany, for  any  term,  the  rights  and  privileges  mentioned  in  the 
preceding  section,  and,  at  the  expiration  of  the  term,  fails  or 
refuses,  upon  petition  of  the  company,  to  renew  the  grant,  the 
city  or  village  shall  purchase  of  the  company  its  property,  con- 
sisting of  sewers,  drains,  and  pipes  actually  laid  and  con- 
structed, with  the  appurtenances,  and  the  materials  and  fixtures 
appertaining  to  the  same,  on  hand  at  the  time  of  the  expiration 
of  such  term,  at  a  price  not  exceeding  the  actual  cost  thereof, 
for  the  use  and  benefit  of  the  city  or  village.  [53  v.  137,  §  5; 
S.  &  C.  341.] 


COUNTY    DITCHES    IN    MUNICIPAL    LIMITS.  769 

Sec.  3873  R.  S.  [Municipality  may  contract  with  company.] 
The  council  of  any  city,  or  the  council  of  any  village,  in  which 
any  such  company  is  organized,  may  contract  with  the  com- 
pany for  the  construction  and  use  of  such  sewers  or  drains,  for 
draining  the  streets,  alleys,  lots,  commons,  wharves,  or  grounds 
within  the  limits  of  the  municipal  corporation;  and  the  city 
or  village  shall  not  use  such  sewers  or  drains  in  any  manner  ex- 
cept by  and  with  the  consent  of  the  company,  and  in  the  man- 
ner, and  upon  the  terms  and  conditions,  which  are  mutually 
agreed  upon  by  the  company  and  the  city  or  village.  [53  v. 
137,  §  6:  S.  &  C.  342.] 

Sec.  3874 U.S.  [Company  may  prescribe  rates.]  Such  com- 
panies may  prescribe  the  terms  upon  which  owners  and  occu- 
pants of  houses  or  lots  may  obtain  the  use  of  their  sewers 
and  drains  for  private  purposes,  and  the  rate  of  charge  an- 
nually for  such  use,  and  also  the  terms  upon  which  the  city 
or  village  may  use  the  sewers  and  drains  for  public  purposes. 
[53  v.  137,  §  7;  S.  &  C.  342.] 

Sec.  3875  R.  S.  [Powers  of  municipalities  not  limited.]  Noth- 
ing in  the  four  preceding  sections  shall  be  construed  to  prevent 
any  city  or  village  from  constructing  sewers,  or  establishing 
nnd  maintaining  a  system  of  sewerage,  under  the  direction  and 
by  the  authority  of  the  municipal  authorities  thereof,  not  in- 
terfering, however,  with  the  work  of  such  company.  [53  v. 
137,  §  8 ;  S.  &  C.  342.] 

5.     COUNTY  DITCHES  IN  MUNICIPAL  LIMITS. 

Sec.  4483  R.  S.  [A  municipal  corporation  may  present  a  peti- 
tion.] The  council  of  a  municipal  corporation  may,  by  reso- 
lution, authorize  the  mayor  to  present  a  petition,  signed  by 
him  officially,  and  a  bond,  to  the  county  commissioners,  to 
locate  and  construct  a  ditch  described  in  the  resolution,  or  such 
council  may  authorize  the  mayor  to  sign  officially  a  petition 
and  bond  for  a  ditch,  to  be  presented  by  parties  interested 
whose  lands  are  without  the  limits  of  the  corporation,  whenever 
the  improvement  will  be  conducive  to  the  public  health,  con- 
venience, or  welfare,  of  the  whole  or  any  portion  of  the  in- 
habitants of  the  corporation;  in  such  case  the  commissioners 
shall  count  the  municipal  corporation  as  an  individual  peti- 
tioner, and  may  direct  the  surveyor  or  engineer  to  locate  the 
improvement  in  accordance  with  the  petition,  whether  wholly 
within  or  wholly  without,  or  partly  within  and  partly  without, 
the  limits  of  the  corporation ;  and  the  surveyor  or  engineer,  in 
making  his  schedule  of  lots  and  lands  benefited,  may  enumer- 
ate such  lots  and  lands  within  or  without  the  corporate  limits 


770  THE   OHIO    MUNICIPAL    CODE. 

as  are  specially  benefited,  and  also  the  municipal  corporation 
for  benefits  to  the  health  and  welfare  of  its  inhabitants.1 

(1)  Scope  of  section, — This  sec-  Except  as  provided  in  §§  4483  and 

tion    only    authorizes    county    com-  4485,     county     commissioners     are 

missioners  to   locate  and   construct  without    jurisdiction    or    authority 

ditch   upon   petition   of  mayor,   but  to    locate    and    construct    a    county 

does   not   extend   to   deepening,    wi-  ditch  within  the  corporate  limits  of 

demng    or    straightening    ditch    al-  a  municipality.    Village  of  Pleasant 

ready   established.     Cooper   v.   Van  Hill  v.  Commissioners,  71  O    S    133 
Wert,  16  Dec.  638;  4  N.  P.   (N.  S.) 
185.     Requisites  of  bond,  see  lb. 

Sec.  4484  R.  S.  [The  whole  or  a  part  of  a  municipality  may 
be  considered  a  single  tract.]  When  the  improvement  equally 
drains  or  otherwise  benefits  the  whole  of  the  territory  within 
the  limits  of  a  municipal  corporation,  or  any  part  thereof,  the 
surveyor  or  engineer,  or  the  commissioners,  or  the  jury,  if  a 
jury  be  called,  may  consider  and  treat  such  territory  as  a  single 
parcel  of  land;  and  any  sum  apportioned  thereto  shall  be  ap- 
portioned by  the  county  auditor  to  the  lots  or  lands  included 
therein,  according  to  the  valuation  thereof  for  taxation. 

Sec.  4485  It.  S.  [Notice  to  municipal  authorities,  and  proceed- 
ings thereafter.]  If  the  proposed  improvement  passes  through 
or  into  a  municipal  corporation  the  mayor  of  which  has  not 
signed  the  petition  therefor  as  provided  in  the  preceding  sec- 
tion, the  mayor  shall  be  notified  of  the  pendency  of  the  petition 
in  the  same  manner  and  at  the  same  time  that  the  commission- 
ers are  required  by  section  forty- four  hundred  and  fifty-two  to 
be  notified;  the  m(ii/  jv  shall  notify  the  council  of  the  pendency 
of  the  petition,  at  its  next  regular  meeting,  or,  if  necessary, 
call  a  special  meeting  of  the  council  for  that  purpose;  and 
thereupon  the  council  shall  appoint  a  committee  of  its  mem- 
bers, or  the  engineer  of  the  corporation,  or  both,  to  meet  the 
commissioners,  at  the  time  and  place  of  their  meeting  and  view, 
and  confer  with  them  in  regard  to  the  improvement 

6.     CONSTRUCTION  AND  REPAIR  OF  VIADUCTS. 

An  act  to  authorize  municipalities  to  construct  and  repair  via- 
ducts and  to  provide  for  the  manner  in  which  funds  raised  for  such 
purpose  shall  be  expended. 

[Sec.  1.]  [Townships  and  municipalities  authorized  to  construct 
or  repair  viaducts;  bonds  therefor.]  That  whenever  the  trus- 
tees of  any  township  or  hamlet,  or  the  council,  board  of  legis- 
lation, or  other  legislative  body,  or  bodies  shall  have  deter- 
mined to  issue  bonds  for  the  purpose  of  constructing  or  repair- 
ing any  viaduct  or  viaducts  over  any  street,  stream,  railway 
tracks  or  other  place  where  an  overhead  roadway  or  footway 


VIADUCTS.  771 

is  deemed  necessary,  under  the  authority  of  section  2835  *  of  the 
Revised  Statutes;  or  whenever  such  trustees,  council,  board  of 
legislation  or  other  legislative  board  [or  boards]  shall  have 
determined  under  the  provision  of  said  last  named  section  to 
purchase  or  condemn,  or  whenever  any  such  township,  hamlet 
or  municipal  corporation  shall  have  purchased  or  condemned 
any  land  for  the  purpose  of  constructing  or  repairing  any  via- 
duct or  viaducts  then  and  in  that  event  said  township,  ham- 
let or  municipal  corporation  shall  have  authority  to  construct 
or  repair  any  such  viaduct  or  viaducts  and  to  purchase  or  con- 
demn the  necessary  land  therefor,  if  the  same  has  not  already 
been  purchased  or  condemned,  and  the  money  arising  from 
the  sale  of  any  of  the  bonds  issued  under  the  authority  of  sec- 
tion 2835  as  aforesaid  shall  be  expended  as  provided  in  sec- 
tion 2  thereof. 

(1)    Section  2835  together  with       Longworth  Bond  Act,  are  re-enacted 
$§2836    and    2837,    known    as    the       in  §  100  of  the  Code,  p.  287. 


[Sec.  2.]    [How  money  raised  for  such  purpose  to  be  expended.] 

All  funds  arising  from  the  sale  of  bonds  for  the  construction 
or  repair  of  viaducts  or  for  the  purchase  or  condemnation  of 
land  for  such  purpose  as  authorized  by  section  2835,  Revised 
Statutes,  shall  be  covered  into  the  treasury  of  the  township, 
hamlet  or  municipal  corporation  as  the  case  may  be,  and  shall 
be  paid  out  and  expended  upon  the  vouchers  of  the  board,  officer 
or  officers  in  such  township,  hamlet  or  municipal  corporation 
having  charge  of  the  repair  of  public  roads  or  streets  therein. 
All  contracts  for  such  improvements  shall  be  made  by  said 
board,  officer  or  officers  in  the  same  manner  as  other  contracts 
are  now  required  by  law  to  be  made  by  them.  All  vouchers 
to  pay  said  contracts  or  for  any  portion  of  the  cost  of  such 
improvements  shall  be  drawn  by  said  board,  officer  or  officers 
upon  the  clerk  of  the  township  or  hamlet,  or  the  auditor  or 
clerk  of  the  municipal  corporation  who  shall  keep  an  accurate 
account  of  all  moneys  so  expended,  and  the  funds  created  by 
the  sale  of  bonds  for  viaduct  purposes  shall  be  known  as  the 
"  Viaduct  fund." 

[Sec.  3.]  [In  case  of  bond  issue  authorized  by  election.]  When- 
ever the  voters  of  any  township,  hamlet  or  municipal  corpora- 
tion shall  determine  to  issue  bonds  for  the  construction  or 
repair  of  viaducts,  or  for  the  purchase  or  condemnation  of 
the  land  necessary  for  such  purpose  as  provided  in  section 
28 37,1  Revised  Statutes,  the  authority  to  make  such  improve- 
ments is  hereby  conferred  and  the  money  arising  from  the 
sale  of  such  bonds  shall  be  expended  in  the  same  manner  as  is 


772  THE    OHIO    MUNICIPAL    CODE. 

provided  for  the  expenditures  authorized  in  section  2  hereof. 
[May  12,  1902,  95  v.  567.] 

(1)    See  note    (1)    under    Sec.    1    of  this  act.     Supra. 

7.     SPKINKLING  THE  STREETS.1 

An  act  to  authorize,  upon  certain  conditions,  the  sprinkling  of 
streets,  avenues,  alleys,  public  squares  and  public  places  in  mu- 
nicipal corporations. 

[Sec.  1.]  [Petition  for  sprinkling*  streets,  etc.]  Upon  the  peti- 
tion of  thirty-five  per  cent,  of  the  electors  in  any  municipal  cor- 
poration in  this  state  to  be  certified  by  the  mayor  of  said  mu- 
nicipal corporation  to  the  council,  board  of  legislation  or  other 
legislative  body,  such  council,  board  of  legislation  or  other 
legislative  body  may  by  ordinance  provide  for  sprinkling  with 
water  any  and  all  or  any  part  of  the  streets,  avenues,  alleys, 
squares  and  public  places  within  the  corporation  in  the  man- 
ner provided  in  this  act 

[Sec.  2.]  [Ordinance  must  receive  affirmative  vote  of  two-thirds 
of  members  of  council.]  The  ordinance  to  provide  for  said 
sprinkling  shall  not  become  operative  unless  it  shall  have  re- 
ceived the  affirmative  votes  of  two-thirds  of  the  members  elected 
to  said  council,  board  of  legislation  or  other  legislative  body. 

[Sec.  3.]  [How  and  by  whom  to  be  done.]  Upon  the  certifica- 
tion of  the  petition  provided  for  in  section  1  hereof,  and  the 
passage  of  the  ordinance  authorized  in  section  2  hereof,  the 
board  or  officer  having  charge  of  the  repair  of  streets  in  such 
municipal  corporation  may  purchase  the  appliances  and  ma- 
terials and  employ  the  labor  necessary  to  provide  for  such 
sprinkling,  or  make  contracts  for  all  or  any  part  of  such 
sprinkling  for  periods  not  exceeding  five  (5)  years. 

[Sec.  4.]  [Tax  levy  therefor;  street  railway  companies  to  pay 
portion  of  cost.]  In  order  to  provide  a  fund  for  the  purpose 
of  paying  all  or  any  part  of  the  cost  of  such  sprinkling,  the 
board  or  officer  having  charge  of  the  repair  of  streets  in  such 
municipal  corporation  may  each  year  estimate  the  cost  thereof, 
and  cause  to  be  levied  a  tax  therefor  upon  the  general  tax  du- 
plicate of  the  city  in  the  same  manner  and  subject  to  the  same 
conditions  as  other  levies  for  municipal  purposes,  except  that 
such  levy  may  be  in  addition  to  the  amount  now  authorized 
for  municipal  purposes,  and  such  levy  upon  said, estimate,  shall 
be  made  by  the  council,  board  of  legislation  or  other  legislative 


OILING  OP  STREETS.  772ft 

body  in  said  municipal  corporation.  Street  railroad  compa- 
nies operating  within  such  corporation  shall  annually  pay  into 
the  treasury  of  said  municipal  corporation  one  (1)  cent  per 
lineal  foot  of  track  upon  sprinkled  streets  as  their  part  of  the 
cost  of  the  sprinkling  herein  provided  for.  [1902,  May  9,  95 
v.  447.] 

(1)    New   Code   provisions   on  the  above  act  authorizes  the  sprink- 

the    subject    of    sprinkling    streets  ling  of  any  or  all  streets  in  the  mu- 

will  be  found  in  §  65  of  the  Code,  nicipality   upon   the   petition   of   35 

page  231.      §  65,  however,  provides  per  cent,  of  the  electors  thereof, 

only  for  the  sprinkling  of  particu-  See  further,  note  1,  nnder  §  65  of 

lar  streets  or  parts  of  streets,  while  the  Code,  p.  281. 


8.     OILING  OF  STREETS. 


[An  act  to  authorize  municipal  corporations  to  contract  to 
have  treated  with  oil,  for  the  purpose  of  laying  the  dust  on, 
and  preserving  the  surface  of  streets,  avenues,  alleys  and  pub- 
lic squares  and  places  and  roadways  in  public  parks,  and  pro- 
viding for  the  payment  of  the  cost  of  such  treatment  by  as- 
sessment on  abutting  property  and  from  the  corporation's 
funds.]  * 

[Sec.  1.]  [Municipal  corporations  authorized  to  treat  streets, 
etc.,  with  oil;  contracts.]  Cities  and  villages  shall  have  au- 
thority to  treat  with  oil,  for  the  purpose  of  laying  the  dust  on, 
and  preserving  the  surface  of,  streets,  alleys,  squares  and  pub- 
lic roadways.  Whenever  the  council  of  any  city  or  village  de- 
sires to  have  such  work  performed  by  contract,  it  shall  pass 
an  ordinance  declaring  its  intent  so  to  do,  and  in  villages  the 
council  shall  contract  and  in  cities  the  council  shall  direct  the 
board  of  public  service  to  contract,  for  a  period  named,  not 
exceeding  five  years,  with  any  person  or  corporation  organized 
for  such  purpose,  for  treating  with  oil  the  streets,  alleys,  lanes, 
squares  and  public  roadways  and  places,  such  contract  to  in- 
clude all  the  districts  established  as  hereinafter  provided  dur- 
ing the  entire  term  of  said  contract.  Such  contract  shall  be 
made  in  accordance  with  the  general  laws  governing  munici- 
pal contracts,  except  that  the  requirement  of  section  45  of 
an  act  "to  provide  for  the  organization  of  cities  and  incorpo- 
rated villages  and  to  restrict  their  power  of  taxation,  assess- 
ment, borrowing  money,  contracting  debts  and  loaning  their 
credit,  so  as  to  prevent  the  abuse  of  such  powers,  as  provided 
by  the  constitution  of  Ohio,  and  to  repeal  all  sections  of  the 


772b  THE   OHIO    MUNICIPAL    CODE. 

Revised  Statutes  inconsistent  therewith,"  passed  October  22, 
1902,  that  a  certificate  that  the  necessarj'  money  is  in  the  treas- 
ury shall  not  apply  to  such  contracts,  nor  shall  the  provision 
of  section  1691  of  the  Revised  Statutes  (revision  1880)  apply 
to  any  such  contract. 

(1)  Validity  of  this  act  sustained.       County,  no  report. 
Eyre  v.  Norwood,  Cir.  Ct.  Hamilton 

[Sec.  2.]  [Establishment  of  district.]  Districts  within  which 
the  streets,  alleys  and  roadways  shall  be  treated  with  oil,  for 
the  purpose  of  laying  the  dust  thereon  and  preserving  the  sur- 
face thereof,  may  be  established  as  follows: 

1.  [Upon  petition  of  property  owners.]  When  a  written 
petition  signed  by  the  owners  of  a  majority  of  the  abutting 
feet  of  property  on  any  street  or  alley,  or  part  thereof,  or  of 
connecting  or  intersecting  streets  or  alleys,  or  parts  thereof, 
having  a  roadway  area  of  not  less  than  twenty  thousand  square 
yards,  is  presented  to  the  board  of  public  service  in  any  city 
or  the  council  in  any  village,  praying  that  the  roadways  within 
the  territory  described  be  treated  with  oil  and  for  the  assess- 
ment of  the  whole  cost  thereof  on  the  property  abutting  such 
streets  or  alleys,  the  board  or  council  shall  forthwith  declare, 
by  resolution,  such  territory  to  be  a  district  within  which  the 
roadways  will  be  treated  with  oil,  for  a  period  named  in  the 
petition  and  not  exceeding  the  life  of  the  contract,  and  the 
cost  thereof  assessed  upon  the  property  abutting  the  streets 
or  alleys  therein  by  the  abutting  foot. 

2.  [By  municipal  authorities.]  When,  in  the  opinion  of  the 
board  of  public  service  in  any  city  or  of  council  in  any  village, 
the  treatment  with  oil,  for  the  purpose  of  laying  the  dust  on 
and  preserving  the  surface  of  the  roadways  of  any  public 
park  or  parks,  or  of  any  street  or  alley,  or  part  thereof,  or  of 
connecting  or  intersecting  streets  or  alleys,  or  parts  thereof, 
having  a  roadway  area  of  not  less  than  twenty  thousand 
square  yards,  will  be  of  general  benefit  within  the  corporation, 
the  board  or  council  may  declare  by  resolution  such  park  or 
parks,  or  the  territory  including  such  street  or  alley,  or  part 
thereof,  or  intersection  or  connecting  streets  and  alleys,  or 
parts  thereof,  to  be  a  district  within  which  the  roadways  shall 
be  treated  with  oil,  for  a  period  named  in  the  resolution  and 
not  exceeding  the  life  of  the  contract,  the  whole  cost,  or  such 
portion  thereof  as  may  by  the  board  or  council  be  deemed 
just,  to  be  paid  by  the  corporation,  and  any  remainder  of  the 
cost  to  be  assessed  by  the  abutting  foot  on  the  property  abut- 
ting the  streets  or  alleys  in  such  district;  provided,  that  there 
shall  be  no  assessment  levied  on  any  property  in  excess  of 


OILING  OF  STREETS.  772c 

fifty  per  cent,  of  the  whole  cost,  except  where  petitioned  for, 
as  hereinbefore  provided. 

[Sec.  3.]  [Assessment  of  property.]  Whenever  any  portion 
of  the  cost  is  to  be  assessed  against  private  property,  notice 
to  the  owners  of  the  property  shall  be  given  by  publishing  the 
resolution  establishing  the  district  and  setting  forth  the  por- 
tion of  the  cost  to  be  assessed,  once  each  week,  for  two  weeks 
in  some  newspaper  published  and  of  general  circulation  in 
the  corporation,  and  if  there  is  no  newspaper  published  in 
such  city  or  village,  copies  of  the  resolution  shall  be  posted  in 
twelve  public  places  in  the  city  or  village. 

[Sec.  4.]  [Objections  to  assessment.]  If  any  owner  objects 
to  the  assessment,  he  shall  file  his  objections  in  writing  with 
the  board  of  public  service  in  cities,  and  the  council  in  villages, 
within  ten  days  after  such  publication  or  posting,  and  there- 
upon the  board  of  public  service  in  cities  and  council  in  vil- 
lages shall  consider  such  objections,  and,  if  they  are  found  to 
be  well  taken,  may  remit  the  whole,  or  such  portion  as  is 
deemed  just,  of  the  assessment  against  the  property  of  the 
objecting  owner,  and  any  deficiency  arising  from  such  remitter 
may  be  made  up  from  any  fund  of  the  corporation  available 
for  cleaning  and  repairing  of  streets,  or  by  contributions  from 
the  owners  desiring  that  the  work  be  done. 

[Sec.  5.]   [Notification  of  contractor  to  proceed  with  work.] 

After  the  expiration  of  the  time  within  which  objections  may 
be  filed,  and  the  disposition  of  any  objections,  the  board  of 
public  service  in  cities  and  council  in  villages  shall  notify  the 
contractor  of  the  passage  of  the  resolution  creating  such  dis- 
trict and  direct  such  contractor  to  proceed  with  the  work  of 
treating  with  oil  the  roadways  in  the  streets  or  alleys  of  such 
district,  fixing  in  the  notice  to  the  contractor  some  reasonable 
period  of  time  within  which  such  work  shall  be  begun. 

[Sec.  6.]  [Assessments  and  the  collection  thereof;  bonds  may 
be  issued.]  Where  the  whole  or  any  portion  of  the  cost  is  to 
be  assessed,  the  board  of  public  service  in  any  city  and  coun- 
cil in  any  village  shall,  within  thirty  days  after  the  first  treat- 
ment with  oil  in  any  district  has  been  accomplished,  and  at  its 
option  may,  at  any  time  previous  thereto,  levy  an  assess- 
ment by  the  abutting  foot  on  the  property  abutting  the 
streets  and  alleys  in  such  district  to  pay  the  whole  or  such 
portion  of  the  cost  as  was  in  the  resolution  determined.  The 
assessment  so  levied  may  be  collected  in  one  or  more  install- 
ments in  the  manner  provided  in  the  case  of  assessments  for 


772d  THE    OHIO    MUNICIPAL    CODE. 

street  improvements,  with  a  penalty  of  five  per  centum  and 
interest  for  failure  to  pay  at  the  time  fixed  in  the  assessing 
ordinance;  provided,  however,  that  no  assessment  shall  be 
collected  in  more  than  one  installment  unless  the  work  peti- 
tioned for  shall  cover  a  period  of  time  greater  than  one  year,, 
when  the  installments  may  equal  in  number  the  years  for 
which  the  district  was  created.  Bonds  or  certificates  of  in- 
debtedness may  be  issued  pnd  sold  in  anticipation  of  the  col- 
lection of  said  assessments,  or  installments  of  assessments,  and 
there  may  be  included  in  one  bond  issue  or  one  certificate  of 
indebtedness  the  amount  of  uncollected  assessments,  or  in- 
stallments of  assessments,  levied  on  the  property  in  any  num- 
ber of  districts  and  payable  within  any  one  calendar  year.  In 
the  cost  shall  be  included  the  cost  of  work  done  on  intersec- 
tions and  roadways  within  the  district,  advertising,  inspection 
and  superintendence.  The  right  of  the  city  or  village  to  levy 
said  assessments  shall  not  be  affected  by  the  amount  of  assess- 
ments theretofore  levied  upon  said  property. 

[Sec.  7.]  [Treatment  herein  provided  regarded  as  a  cleaning1 
and  repairing  of  s+reets,  etc.]  The  treatment  with  oil  in  this 
act  provided  for  shall  be  regarded  as  a  cleaning  and  repairing 
of  streets  and  alleys,  and  the  corporation's  portion  of  the  cost 
thereof  may  be  paid  from  any  fund  available  for  the  cleaning 
or  repairing  of  streets  or  alleys,  and  when  the  roadways  of 
any  public  park  or  parks  are  ordered  to  be  so  treated,  the 
cost  thereof  may  be  paid  from  any  fund  available  for  the  care 
or  maintenance  of  such  parks. 

[Sec.  8.]  [Term  " owner' '  defined.]  The  term  " owner,' r 
within  the  meaning  of  this  act,  shall  be  held  to  include  the 
legal  or  equitable  owner,  the  person  in  whose  name  the  prop- 
erty may  be  assessed  for  taxation  on  the  tax  duplicate,  or  a 
tenant  giving  satisfactory  guaranty  that  the  assessment 
against  the  property  signed  for  will  be  paid.  [1906,  March 
14,  98  v.  50.] 


9.    NUISANCES  IN  STREETS. 

Sec.  6921.  [Nuisances.]  Whoever  erects,  continues,  uses, 
or  maintains,  any  building,  structure,  or  place  for  the  ex- 
ercise of  any  trade,  employment,  or  business,  or  for  the  keep- 
ing or  feeding  of  any  animal,  which,  by  occasioning  noxious 
exhalations,  or  noisome  or  offensive  smells,  becomels  inju- 
rious to  the  health,  comfort,  or  property  of  individuals,  or 
the  public,   or   causes   or  suffers   any  offal,  filth,   or  noisome 


OILING    OF    STREETS.  773 

substance,  to  be  collected,  or  to  remain,  in  any  place,  to  the 
damage  or  prejudice  of  others,  or  the  public,  or  obstructs  or 
impedes,  without  legal  authority,  the  passage  of  any  naviga- 
ble river,  harbor,  or  collection  of  water,  or  corrupts,  or  ren- 
ders unwholesome  or  impure,  any  water-course,  stream,  or 
water,  or  unlawfully  diverts  any  such  water-course  from  its 
natural  course  or  state,  to  the  injury  or  prejudice  of  others, 
or  obstructs  or  incumbers,  by  fences,  buildings,  structures,  or 
otherwise,  any  public  ground,  or  highway,  or  any  street  or 
alley  of  any  municipal  corporation,  shall  be  fined  not  more 
than  five  hundred  dollars.  [30  v.  22,  §§  1,  2;  54  v.  130,  §§  1,  2; 
72  v.  112,  §  1;  32  v.  38,  §  1;  S.  &  C.  441;  S.  &  C.  878;  8.  &  C. 
880.1 


10.     MISCELLANEOUS   PROVISIONS    AS    TO  ASSESS- 
MENTS.1 

Sec.  2301  R.  S.  [Expense  of  changing1  established  grades :  how 
paid;  Toledo.]  2  That  when  a  street,  alley,  public  highway, 
wharf  or  landing,  within  the  corporation,  is  graded,  or  pave- 
ments are  constructed  in  conformity  to  grades  established  by 
the  authorities  of  the  corporation,  and  the  expense  is  assessed 
on  the  abutting  lots  or  lands,  the  owners  shall  not  be  subject 
to  any  special  assessment  occasioned  by  any  subsequent  change 
of  grade  in  such  pavement,  street,  alley,  public  highway,  wharf 
or  landing  unless  a  petition  for  such  change  is  subscribed  by  a 
majority  of  the  owners  of  such  lots  or  lands,  and  the  expense 
of  all  improvements  occasioned  by  such  change  of  grade  not  so 
petitioned  for  shall  be  chargeable  to  the  general  fund  of  the 
corporation;  provided,  that  in  cities  of  the  third  grade  of  the 
first  class  a  petition  for  such  change  subscribed  by  the  owners 
of  a  majority  of  the  feet  front  of  such  lots  or  lands  shall  have 
the  same  effect  as  when  subscribed  by  a  majority  of  said  own- 
ers.3 [1888,  April  5 :  85  v.  158 ;  Kev.  Stat  1880 ;  66  v.  243, 
§  560;  (S.  &S.  838).] 


(1)  Sections  carried  under  this  (2)  This  section  is,  with  the  ex- 
heading  are  certain  sections  in  the  ception  of  the  latter  part  relating 
chapter  on  assessments  (Chap.  4,  to  Toledo,  almost  identical  with  § 
Div.  4,  Title  XII.  R.  S.)  not  re-  64  of  the  Code  (page  230),  and  is 
enacted  in  the  Code  and  not  express-  probably  superseded  by  that  section. 
!y  repealed.  (3)    For  notes  on  the  subject  of 

For  re-enacted  sections  on  assess-  this  section,  see  notes  under  §  64  of 

ments   see   §   94   of  the   Code,   page  the  Code,  page  230. 
260  et  seq. 


774  THE    OHIO    MUNICIPAL    CODE. 

I 

Sec.  2313  R.  S.  [Assessment  for  sprinkling,  etc.,  lien  on  land 
charged.]  x  Every  such  assessment  shall  be  a  lien  on  the  lands 
charged  from  the  time  the  council  determines  the  amount  as- 
sessed against  each  parcel  of  land.      [66  v.  221,  §  437.] 

( 1 )   Sprinkling   streets. —  See   §      Streets,  supra,  in  Part  II,  and  note 
65  of  the  Code,  page   231,   and   see       under  said  act. 
act    under    title    Sprinkling    the 

Sec.  2314  R.  S.  [Expense  of  collecting  to  be  added  to  assess- 
ment.] J  In  placing  such  assessment  on  the  tax  list,  the  county 
auditor  is  required  to  add  to  each  assessment  such  per  centum 
as  he  may  deem  necessary  to  defray  the  expenses  of  collect- 
ing the  same.      [66  v.  222,  §  438.] 

(1)    See   §   65  of  the  Code,  page  231. 

Sec.  2404  R.  S.  [Repairs  of  sewers,  ditches,  etc.]  The  coun- 
cil may,  whenever  it  is  deemed  necessary,  provide  for  the  re- 
pair or  reconstruction  of  any  sewer,  ditch,  or  drain;  and  the 
proceedings  for  that  purpose  shall  be  the  same,  so  far  as  appli- 
cable, as  are  herein  required  for  the  original  construction 
thereof.1      [66  v.  256,  §  638.] 

(1)   See  §  77  et  seq.  of  the  Code. 


11.     CONSTRUCTION    OF    SIDEWALKS    IN    VILLAGES. 

An  act  to  provide  for  the  construction  of  sidewalks  in  villages.1 

[Sec.  1.]  [Provision  for  the  construction  of  sidewalks  in  vil- 
lages.] That  the  council  of  villages,  may,  upon  the  petition  of 
the  owners  of  two-thirds  of  the  front  feet  of  lots  or  lands  abut- 
ting upon  one  or  both  sides  of  any  street  or  portion  of  street 
between  points  designated  in  the  petition,  provide  by  ordinance 
for  the  construction  of  sidewalks  along  said  street  or  portion 
thereof,  on  one  or  both  sides,  as  designated  in  the  petition,  and 
of  such  materials  and  width  as  may  be  designated  in  said  peti- 


SIDEWALKS    IN    VILLAGES.  774a 

tion.  The  supervision  of  the  construction  of  said  sidewalks 
shall  be  by  the  council  or  a  proper  committee  thereof.  The 
construction  of  said  sidewalks  shall  be  governed  in  all  respects 
by  the  provisions  of  title  12  of  the  Revised  Statutes  of  Ohio 
relating  to  the  improvement  of  streets.  One-half  of  the  cost 
and  expenses  of  said  sidewalk  or  sidewalks  shall  be  defrayed 
by  the  village  and  the  other  half  shall  be  assessed  against  the 
property  abutting  on  such  street  or  portion  of  street  between 
the  points  designated  in  said  petition,  in  the  manner  designated 
in  said  petition. 

[Sec.  2.]  [Assessments.]  Whenever  council  shall  order  side- 
walks to  be  constructed  in  accordance  with  the  prayer  of  a 
petition  as  referred  to  in  the  foregoing  section,  it  shall  also  pro- 
vide for  the  payment  of  the  property  owner's  one-half  of  the 
cost  and  expenses  thereof,  in  two  or  more  equal  annual  install- 
ments, and  make  corresponding  annual  assessments  therefor 
on  the  property  abutting  upon  said  improvement,  and  such 
assessment  shall  be  collected  or  certified  as  assessments  for 
street  improvements,  and  be  a  lien  upon  the  property  assessed. 
The  council  is  hereby  authorized  to  issue  bonds  in  anticipation 
of  the  collection  of  the  amount  chargeable  against  the  property 
owners,  which  bonds  shall  bear  interest  at  a  rate  not  to  exceed 
six  per  cent,  per  annum,  and  shall  be  sold  for  not  less  than  par. 

[Sec.  3.]  [Bonds  to  pay  village's  portion  of  cost.]  Eor  the 
purpose  of  paying  the  village's  portion  of  the  cost  and  ex- 
penses of  constructing  said  sidewalk  or  sidewalks,  the  council 
is  hereby  authorized  to  borrow  money  at  such  times  and  in  such 
amounts  as  may  be  required,  and  may  issue  bonds  of  the  village 
for  money  so  borrowed  at  a  rate  of  interest  not  to  exceed  six 
per  cent,  per  annum,  payable  semi-annually,  and  of  such  de- 
nomination as  the  council  may  determine.  The  issuing  and 
sale  of  such  bonds  shall  be  governed  by  the  provisions  of  the 
Revised  Statutes  of  Ohio  applicable  to  the  issuing  and  sale  of 
municipal  corporation  bonds.  The  council  is  hereby  authorized 
to  levy  upon  all  the  taxable  property  of  the  village,  in  addition 
to  the  taxes  now  allowed  by  law,  such  tax  as  may  be  necessary 
to  pay  the  principal  and  interest  of  said  bonds  as  they  mature, 
said  tax  to  be  levied  and  collected  in  the  same  manner  as  taxes 


774b  THE    OHIO    MUNICIPAL    CODE. 

for  general  purposes  in  villages  are  levied  and  collected.  [1904, 
April  26,  97  v.  481.] 

(1)    Code  provisions  on  subject  above    act    provides    an    additional 

of  construction  of  sidewalks  in  both  method  by  which  sidewalks  may  be 

cities  and  villages  will  be  found  in  constructed   and  the  costs  assessed, 

§   70   of  the   Code,   page   236.     The  in  villages. 

Sec.  4909  R.  S.     [Sidewalks  along  roads  authorized.]     Any 

person  or  board  of  education,  the  council  of  any  village,  the 
trustees  of  any  cemetery  association,  or  any  agricultural  or 
religious  society  may  appropriate  on  any  public  road  of  suffi- 
cient width  on  either  side  thereof,  sufficient  land  to  construct 
thereon  a  public  sidewalk  not  exceeding  six  feet  in  width,  and 
may  construct  such  sidewalk  thereon;  but  such  sidewalks 
shall  not  obstruct  any  private  entrance  or  public  highway. 
[1889,  February  12:  86  v.  33;  79  v.  131;  77  v.  145;  Rev.  Stat. 
1880;  64  v.  107,  §  1;  (S.  &  S.  693;  S.  &  C.  1552.] 


INJURIES    FEOM    EXCAVATIONS.  775 


XVII 
INJURIES  FROM  EXCAVATIONS.1 

Sec.  2676  R.  S.  [Damage  by  excavation  to  be  recovered  by 
civil  action.]  2  If  the  owner  3  or  possessor  of  any  lot  or  land,4 
in  any  city  or  village,  digs,  or  causes  to  be  dug,  any  cellar, 
pit,  vault,  or  excavation,  to  a  greater  depth  than  nine  feet5 
below  the  curb  of  the  street  or  streets  on  which  such  lot  or  land 
abuts,  or,  if  there  be  no  curb,  below  the  established  grade  of  the 
street  or  streets  on  which  such  lot  or  land  abuts,  or  if  there  be 
no  curb  or  established  grade,  below  the  surface  6  of  the  adjoin- 
ing lots,  and  by  such  excavation,  causes  any  damage  to  any 
wall,  house,  or  other  building  upon  the  lots  adjoining  thereto, 
such  owner  or  possessor  shall  be  liable,  in  a  civil  action,  to  the 
party  injured,  to  the  full  amount  of  the  damage  aforesaid.7 
When  there  is  a  curb  or  established  grade,  the  depth  of  such 
excavation,  at  any  point  thereof,  shall  be  measured  downward 
from  the  pitch  line  projecting  laterally  over  the  lot  or  land 
from  and  between  the  corresponding  points  in  the  nearest  curb 
or  established  grade  opposite  the  ends  of  such  pitch  line.  [66 
v.  232;  9Y  v.  323.] 

(1)  Title,  division  and  chapter,  without  supporting  adjacent  walls. 
—  Sections  carried  under  this  head-  The  owner  of  a  lot  who  erects  a 
ing  formed  Chap.  17,  Div.  8,  Title  building  that  would  be  injured  by 
XII,  Bates'  Revised  Statutes.  None  the  excavation  on  the  adjoining  lot 
of  the  sections  in  this  chapter  are  to  the  statutory  depth  does  so  at  his 
repealed  by  the  Code.  peril.     McMillan  v.  Watt,  27  O.  S. 

(2)  Validity. —  This   act  is   con-  306. 

stitutional.    Emery  v.  Coles,  5  N.  P.  But  the  lot  owner  digging  to  the 

199.  statutory  depth  is  not  relieved  from 

(3)  Owner  does  not  include  negligence  by  this  statute.  Cincin- 
school  board  holding  property  for  nati  etc  R  R  v<  PfaUj  9  B.  200 
school  purposes.  Bd.  of  Ed.  v.  Volk,  ,          „    „ 

72  O.  S.  469.  *affd'  16  B>  7)- 

(4)  Lot  or  land.-This  section  H°w  to  determine  nine  foot 
does  not  apply  to  improvements  in  depth.— Where  a  lot  extends  from 
streets  and  alleys.  Allison  v.  Cin-  one  street  to  another  of  a  different 
cinnati,  2  C.  S.  0.  R.  462.  grade  the  nine  feet  below  the  curb  is 

(5)  No  support  required  when.  a  ijne  from  nme  feet  below  the  up- 

— One   may   die   a   cellar   nine   feet  ,,  .   .     .„  m  *.  K^-^m 

J       6  per  curb  to  a  point  nine  feet  bexow 


776 


THE   OHIO    MUNICIPAL    CODE. 


lower  curb.     Elshoff  v.   Deremo,   3 
N.  P.  273. 

(6)  Surface. — Surface  means  the 
actual  surface  whether  caused  by 
filling  in  or  not,  and  not  the  natural 
surface  before  any  filling.  Burk- 
hardt  v.  Hanley,  23  O.  S.  558. 

(7)  Construction  of. section. — 
The  clear  meaning  of  §§2676  and 
2677  R.  S.  is  to  limit  their  applica- 
tion to  a  lot  abutting  on  the  same 
street  as  that  upon  which  abuts  the 
lot  in  which  the  excavation  is  made. 
Tajlor  v.  Day,  6  N.  P.  447. 


The  effect  of  this  section  is  to  am- 
plify the  common  law  rule  as  to 
lateral  support,  so  as  to  create  a 
liability  for  removing  the  lateral 
support  of  buildings  where  the  ex- 
cavation goes  more  than  nine  feet 
below  the  street  grade,  but  it  does 
not  modify  the  common  law  rule  as 
to  the  lateral  support  of  the  soil  it- 
self. Belden  v.  Franklin,  28  C.  C. 
373;  8  C.  C.  (N.  S.)  159.  But  see 
Hall  v.  Kleeman,  4  N.  P.  201 ;  Volk 
v.  Board  of  Education,  7  N.  P.  164 
(reversed  72  O.  S.  469). 


Sec.  2677  R.  S.  [Depth  of  excavation  allowable.]  Such  owner 
or  possessor  may  dig,  or  cause  to  be  dug,  any  such  cellar,  pit 
or  excavation,  to  the  full  depth  of  any  foundation  wall  of  any 
building  upon  the  adjoining  lot  or  lots,  or  to  the  full  depth 
of  nine  feet  below  the  established  grade  of  the  street  or  streets 
whereon  such  lot  abuts,  without  reference  to  the  depth  of  ad- 
joining foundation  walls,  without  incurring  the  liability  pre- 
scribed in  this  chapter,  and  may,  on  thirty  days'  notice  to 
adjoining  owners,  grade  and  improve  the  surface  of  any  lot  to 
correspond  with  the  established  grade  of  the  street,  streets  or 
alley,  upon  which  such  lot  or  land  abuts,  without  incurring 
liability.1      [91  v.  211 ;  $6  v.  232 ;  97  v.  323.] 


( 1 )  Right  to  grade.—  A  lot  own- 
er in  a  city  or  village  may  with  im- 
punity, in  the  absence  of  negligence 
and  upon  giving  proper  notice,  grade 
his  lot  to  conform  to  the  grade  of 
the  street.  Hall  v.  Kleeman,  4  N. 
P.  201,  203. 

But  where  statutory  notice  is  not 


given  the   common   law   rule   would 
prevail.     lb. 

Liability  of  owner  when  noti- 
fied.- -  Where  owner  has  received 
notice  of  excavation  in  adjoining 
lot  and  his  house  is  damaged  by 
such  excavation  he  is  liable  to  a 
tenant  injured  thereby.  Kuhn  v. 
Remmler,   16  B.  366. 


LIBRARIES. 


777 


XVIII 
LIBRARIES.1 


1.     IN  CERTAIN  CITIES  AND  VILLAGES. 

Sec.  4002 — 39  R.  S.  [Certain  cities  and  villages  may  have  li- 
brary; tax.]  The  common  council  of  every  city  not  exceeding 
in  population  thirty  thousand  inhabitants,  and  of  every  incor- 
porated village  shall  have  power  to  establish  and  maintain  a 
public  library  and  reading  room,  and  for  such  purpose  may  an- 
nually levy  and  cause  to  be  collected  as  other  general  taxes 
are,  a  tax  not  exceeding  one  mill  on  each  dollar  of  the  taxa- 
ble property  of  such  city  or  village,  to  constitute  the  library 
fund,  which  shall  be  kept  by  the  treasurer  separate  and  apart 
from  other  money  of  the  city  or  village,  and  be  used  exclusively 
for  the  purchase  of  books,  periodicals,  necessary  furniture  and 
fixtures  and  whatever  is  required  for  the  proper  maintenance  of 
such  library  and  reading  room.      [89  v.  98.] 


(1)  New  code  provisions  with 
respect  to  t'ne  management  and  con- 
trol of  free  municipal  libraries  will 
be  found  in  §  218  of  the  Code. 

Power  to  establish  and  main- 
tain public  libraries  is  given  to 
all  municipalities  in  §  7,  paragraph 
22  of  the  Code,  page  61;  and  power 
to  appropriate  sites  for  library 
buildings  is  given  in  §  10  of  the 
Code,  page  81. 

Power  to  issue  bonds,  given  to 
"any  public  library  board,"  see  "An 
act  to  provide  for  the  erection  and 
equipment  of  public  library  build- 
ings," 98  O.  L.  260. 

Special  acts  relating  to  public 
libraries. 

Cincinnati,  §§  3999,  3999a,  39996. 
3999o,  3999a",  3999e,  R.  S.,  and  95 
O.  L.  361. 


Cleveland,  §§4000,  4001,  4002, 
4002-1  to  4002-18,  inclusive,  R.  S., 
and  95  O.  L.  438. 

Toledo,  §§4002-19  to  4002-31,  in- 
clusive, R.  S. 

Dayton,  §§  4002-32  to  4002-38,  in- 
clusive, R.  S. 

Portsmouth,  §§4003-4006,  inclu- 
sive, R.   S. 

Canton,  94  O.  L.  739. 

Findlay,  85  O.  L.  546. 

Youngstoion,  87  O.  L.  105. 

Tronton,  90  O.  L.  311. 

Cambridge,  95  O.  L.,  736. 

Cities  of  fourth  grade,  second 
class,  §§4002-46  to  4002-49,  inclu- 
sive, R.  S. 

Validity  of  special  acts  relat- 
ing to  libraries.  The  act  of  May  9, 
1902,  authorizing  the  trustees  of  the 
public  library  of  the  school  dis- 
trict  of   the   city   of   Cincinnati   to 


778  THE   OHIO   MUNICIPAL    CODE. 

receive  a  donation  from  Mr.  Andrew  440,  and  State  ex  rel.  v.   Spell  mire, 

Carnegie    and    to    establish    branch  67  O.  S.  77. 

libraries,  was  held  unconstitutional  School    libraries. —  For    acts    re- 

by  the   Supreme   Court  without  re-  lating   thereto,    see    §§    3995,    3996, 

port,  in  Sadler  v.  Porter,  67  O.   S.  3997,  3998,  3999  R.  S.,  and  95  O.  L. 

531,  on  the  authority  of  Cincinnati  478;  96  O.  L.  8. 

v.   Trustees   of  Hospital,   66   0.   S.  Township      libraries. —  See      §§ 

1476,  1477,  1478  R.  S. 


Sec.  4002 — 40  R.  S.  [Directors.]  For  the  government  of  such 
library  and  reading  room  there  shall  be  a  board  of  six  direc- 
tors,1 appointed  by  the  council  of  such  city  or  village  from 
among  the  citizens  thereof  at  large,  and  not  more  than  one- 
member  of  the  council  of  such  city  or  village  shall  at  any 
one  time  be  a  member  of  said  board.  Such  directors  shall 
hold  their  office  for  three  years  from  the  date  of  appointment,, 
and  until  their  successors  are  appointed,  but  upon  their  first  ap- 
pointment they  shall  divide  themselves  at  their  first  meeting  by 
lot  into  three  classes,  one-third  for  one  year,  one-third  for  two 
years,  and  one-third  for  three  years,  and  their  terms  shall  ex- 
pire accordingly.  All  vacancies  shall  be  immediately  reported 
by  the  directors  to  the  proper  council,  and  be  filled  by  appoint- 
ment in  like  manner ;  and  if  an  unexpired  term,  for  the  residue 
of  the  term  only.  No  compensation  whatever  shall  be  paid  or 
allowed  to  any  director.      [89  v.  98.] 

( 1 )  Managing  board. —  By  §  established  by  municipal  corpora- 
218  of  the  Code  the  custody  and  tions  are  vested  in  six  trustees  to  be 
management  of  all  public  libraries      appointed  by  the  mayor. 

Sec.  4002 — 41  R.  S.  [Organization;  by-laws,  etc.;  control  of 
expenditures;  custody  of  building;  how  money  drawn  from  treas- 
ury; librarian  and  assistants.]  Said  directors1  shall,  immedi- 
ately after  their  appointment,  meet  and  organize  by  the  election 
of  one  of  their  number  president,  and  by  the  election  of  such 
other  officers  as  they  may  deem  necessary.  They  shall  make 
and  adopt  such  by-laws,  rules  and  regulations  for  their  own 
guidance,  and  for  the  government  of  the  library  and  reading 
room,  as  may  be  expedient.  They  shall  have  the  exclusive  con- 
trol of  the  expenditures  of  all  moneys  collected  for  the  library 
fund,  and  the  supervision,  care  and  custody  of  the  rooms  or 
buildings  constructed,  leased  or  set  apart  for  that  purpose, 
and  such  money  shall  be  drawn  from  the  treasury  by  the  proper 
officers,  upon  the  properly  authenticated  voucher  of  the  board 
of   directors,    without   otherwise   being   audited.     They   may, 


LIBRARIES.  779 

with  the  approval  of  the  common  council,  lease  and  occupy,  or 
purchase,  or  erect  on  purchased  ground,  an  appropriate  build- 
ing, provided  that  no  more  than  half  the  income  in  any  one 
year  can  be  set  apart  in  said  year  for  such  purchase  or  building. 
They  may  appoint  a  librarian  and  assistants,  and  prescribe  rules 
for  their  conduct.      [89  v.  98.] 

( 1 )    See   note    ( 1 )    to    §   4002-40,  supra. 

Sec.  4002 — 42  R.  S.  [Who  may  use  library.]  Every  library 
and  reading  room  established  under  this  chapter  shall  be  for- 
ever free  for  the  use  of  the  inhabitants  of  the  city  or  village 
where  located,  always  subject  to  such  reasonable  rules  and  reg- 
ulations as  the  library  board x  may  find  necessary  to  adopt 
and  publish  in  order  to  render  the  use  of  said  library  and  read- 
ing room  of  the  greatest  benefit  to  the  greatest  number;  and 
they  may  exclude  and  cut  off  from  the  use  of  said  library  and 
reading  room  any  and  all  persons  who  shall  willfully  violate 
such  rules.      [89  v.  98.] 

( 1 )    See   note    ( 1 )    to   §   4002-40,  supra. 

Sec.  4002— 43  R.  S.  [Annual  report.]  The  said  board  of  di- 
rectors !  shall  make  an  annual  report  to  such  council,  stating 
the  condition  of  their  trust  —  the  various  sums  of  money  re- 
ceived from  the  library  fund,  and  from  all  other  sources,  and 
how  much  has  been  expended ;  the  number  of  books  and  period- 
icals on  hand;  the  number  added  by  purchase,  gift  or  other- 
wise during  the  year;  the  number  lost  or  missing,  the  num- 
ber of  books  loaned  out,  and  the  general  character  and  kind 
of  such  books,  with  such  other  statistics,  information  and  sug- 
gestions as  they  may  deem  of  general  interest.      [89  v.   98.] 

-    ( 1 )    See  note    ( 1 )    to    §   4002-40,  supra. 

Sec.  4002 — 44  R.  S.  [Donations.]  All  persons  desirous  of 
making  donations  of  money,  personal  property  or  real  estate, 
for  the  benefit  of  such  library,  shall  have  the  right  to  vest  the 
title  of  the  same  in  the  board  of  directors  1  created  under  this 
law,  to  be  held  and  controlled  by  said  board,  when  accepted 
according  to  the  terms  of  the  deed  of  gift,  devise  or  bequest 
of  such  property,  and  as  to  such  property  the  said  board  shall 
be  held  and  considered  to  be  special  trustees.      [89  v.  98.] 

<  1 )    See   note    ( 1 )    to    §   4002-40,  supra. 


780  THE    OHIO    MUNICIPAL    CODE. 

Sec.  4002 — 45  It.  S.  [Tax  to  assist  existing  library  associa- 
tion.] In  case  a  free  public  library  has  already  been  estab- 
lished in  any  city  or  incorporated  village,  and  duly  incorporated 
and  organized,  the  council  may  levy  a  tax  1  for  its  support  as 
provided  in  this  act,  without  change  in  the  organization  of  such 
library  association,  and  the  sum  so  raised  shall  be  paid  to  the 
officer  or  officers  duly  authorized  to  receive  the  same,  and  shall 
be  under  the  control  of  the  said  library  association;  provided, 
that  if  at  any  time  such  library  association  ceases  to  exist  or 
from  any  reason  fails  to  provide  a  free  circulating  library  as  re- 
quired by  the  provisions  of  this  act,  the  books  and  other  prop- 
erty accumulated  from  the  proceeds  of  the  levy  herein  author- 
ized shall  become  the  property  of  the  city  or  village  and  be 
subject  to  the  control  of  the  council  as  herein  provided.  [89 
v.  98.] 

( 1 )  Tax  for  public  library  pur-  authorized  as  recompense  to  private 
poses. —  See  §§  32  and  33  of  the  association  maintaining  free  public 
Code,  pages  157  and  158.     Tax  levy       library,  see   §  219  of  the  Code. 

An  act  to  authorize  the  transfer  of  property  by  municipal  corpo- 
rations to  trustees  of  libraries  of  school  districts,  and  the  accept- 
ance of  the  same,  and  other  property,  for  library  purposes  by  said 
trustees. 

[Sec.  1.]  [Transfer  of  library  property  from  municipalities  to 
school  districts.]  That  it  shall  be  lawful  for  any  municipal 
corporation  in  this  state  to  transfer  by  ordinance  duly  passed, 
any  property,  real  or  personal,  acquired  or  suitable  for  library 
purposes,  to  the  trustees  of  any  public  library  for  the  school  dis- 
trict within  which  such  municipal  corporation  is  situate,  upon 
such  lawful  terms  and  conditions  as  may  be  agreed  to  between 
said  municipal  corporation  and  said  trustees. 

[Sec.  2.]  [Power  of  school  districts  to  receive.]  The  trustees 
of  any  public  library  in  any  such  school  district  are  hereby 
authorized  and  empowered  to  receive  and  accept  any  such  trans- 
fer, and  to  receive  and  accept  from  any  other  source  or  acquire 
in  any  other  manner,  any  property,  real  or  personal,  for  library 
purposes,  and  use  and  apply  the  same  for  such  purposes,  and 
to  enter  into  any  contract  relating  thereto.  [1904,  April  21, 
97  v.  133.] 


LIBRARIES.  781 

2.     APPROPRIATION  OF  FINES  TO  LAW  LI- 
BRARIES.1 

Sec.  2680  R.  S.  [Appropriation  of  certain  fines  in  police  court 
to  use  of  libraries.]  All  fines  and  penalties  which  are  assessed 
and  collected  by  the  police  court  for  offenses  and  misdemeanors 
prosecuted  in  the  name  of  the  state,  except  a  portion  thereof 
equal  to  the  compensation  allowed  by  the  county  commissioners 
to  the  judges,  clerk  and  prosecuting  attorney  of  such  court, 
in  state  cases,  which  shall  be  retained  by  the  clerk,  shall  be  paid 
by  the  clerk  quarterly  to  the  trustees  of  such  law  library  asso- 
ciations mentioned  in  the  next  two  preceding  sections,  except 
those  in  cities  of  the  first  and  second  grades  of  the  first  class,  but 
the  sums  so  paid  shall  not  be  less  than  five  hundred  dollars  per 
annum,  if  there  be  such  an  amount,  and  the  trustees  of  such 
associations  shall,  on  the  first  Monday  of  each  year,  make  a 
detailed  statement  to  the  auditor  of  the  county,  verified  by  the 
oath  of  the  treasurer  of  the  association,  of  the  amount  of  the 
fines  and  penalties  so  received,  and  of  the  money  expended  by 
the  association.  In  counties  containing  cities  of  the  second 
grade  of  the  first  class  there  shall  be  paid  to  the  trustees  of  such 
library  association  the  sum  of  five  hundred  dollars  per  annum 
from  the  county  treasury  and  five  hundred  dollars  per  annum 
from  the  city  treasury,  said  sums  to  be  paid  in  quarterly  in- 
stallments. The  monies  so  paid  to  be  expended  in  the  purchase 
of  law  books  and  the  maintenance  of  such  association.  All 
justices  of  the  peace  of  such  counties  and  all  officers  of  the 
townships,  villages  and  cities  therein  shall  have  the  same  free 
use  of  the  books  of  such  library  receiving  such  monies  as  the 
judges  and  county  officers.  In  cities  of  the  first  grade  of  the 
first  class,  all  fines  and  penalties  which  are  or  have  been  as- 
sessed and  collected  by  the  police  court  for  offences  prosecuted 
in  the  name  of  the  state,  shall  be  disposed  of  as  directed  by 
sections  1807  and  1812  of  the  Revised  Statutes  of  Ohio,  and 
the  clerk  of  the  police  courts,  in  cities  of  the  first  grade  of  the 
first  class,  shall  be  relieved  of  all  responsibility  and  liability  for 
any  such  fines  and  penalties  assessed  and  collected  ast  have  been 
or  may  be  paid  over  to  the  county  auditor  as  directed  by  sec- 
tions 1807  and  1812  of  the  Revised  Statutes  of  Ohio.  [94  v. 
135 ;  91  v.  296 ;  89  v.  51 ;  69  v.  165,  §  2.] 

( 1 )    Sections    carried    under    this  pealed  by  the  Code,  but  §§  2678  and 

heading  formed  part  of  Ch.  18,  Div.  2679,  not  carried  here,  relate  solely 

8,   Title   XII.,   R.    S.     None   oi   the  to  counties  and  not  to  cities, 
sections    in    this    chapter    were    re- 


782  THE    OHIO    MUNICIPAL    CODE. 

Sec.  2680a  R.  S.  [Certain  fines  to  use  of  library  in  Darke 
county.]  That  in  all  counties  which  at  the  last  federal  census 
had  a  population  of  not  more  than  42,965  nor  less  than  42,958 
in  which  there  is  such  library  association  mentioned  in  section 
2680,  and  in  which  there  is  no  such  police  court,  that  all  fines 
and  penalties  which  are  assessed  and  collected  by  the  common 
pleas  and  probate  courts  of  such  counties  for  offenses  and  mis- 
demeanors prosecuted  in  the  name  of  the  state,  except  a  portion 
thereof  equal  to  the  compensation  allowed  by  law  to  the  pros- 
ecuting attorney  of  the  county  in  state  cases,  shall  be  paid 
quarterly  by  the  clerk  of  the  court  of  common  pleas  and  the 
probate  judge,  respectively,  to  the  trustees  of  such  law  library 
associations,  to  be  expended  in  the  purchase  of  law  books  and 
the  maintenance  of  such  associations ;  but  the  sum  so  paid  shall 
not  exceed  four  hundred  dollars  per  annum,  and  subject  in  all 
other  respects  to  the  provisions  contained  in  section  2680.  [90 
v.  312.] 

Sec.  2680b.  R.  S.  [Same  in  Butler  county.]  That  in  all  coun- 
ties in  which  there  is  such  library  association  mentioned 
in  section  2680,  and  in  which  there  is  a  city  of  the  third  grade 
b  of  the  second  class,  containing  a  free  library  and  in  which 
there  is  no  such  police  court,  that  one-half  of  all  fines  and  pen- 
alties which  are  assessed  and  collected  by  the  mayor  of  said 
city,  prosecuted  in  the  name  of  the  state  or  city,  shall  be  paid 
quarterly  by  said  mayor  to  the  trustees  of  such  library  associa- 
tion, to  be  expended  in  the  purchase  of  law  books  and  the  main- 
tenance of  such  association;  and  the  other  half  shall  be  paid 
quarterly  by  said  mayor  to  the  trustees  of  said  free  library  to 
be  expended  in  like  manner,  but  the  sum  so  paid  shall  not 
exceed  five  hundred  dollars  per  annum,  and  should  be  subject 
in  all  other  respects  to  the  provisions  contained  in  section  2680. 
[91  v.  369;  91  v.  219.] 

Sec.  2680c  R.  S.  [Same  in  Columbiana  county.]  That  in  all 
counties,  which,  at  the  last  federal  census  had  a  population  of 
not  more  than  fifty-nine  thousand  and  thirty-five  and  not  less 
than  fifty-nine  thousand  and  twenty-five,  in  which  there  is  such 
a  law  library  association  as  that  mentioned  in  section  2680,  and 
in  which  there  is  no  such  police  court,  fifteen  per  cent,  of  all 
fines  and  penalties  which  are  assessed  and  collected  by  the  com- 
mon pleas  and  probate  courts  of  such  counties,  for  offenses 
and  misdemeanors  prosecuted  in  the  name  of  the  state,  except 
that  portion  thereof  allowed  by  law  to  the  prosecuting  attor- 


LIBRARIES.  783 

ney  in  such  cases,  shall  be  paid  quarterly  by  the  clerk  of  the 
court  of  common  pleas  and  probate  judge,  of  such  counties,  to 
the  trustees  of  such  law  library  association,  to  be  expended  in 
the  purchase  of  law  books  and  the  maintenance  of  such  asso- 
ciations and  such  library  associations  and  libraries  shall  be  sub- 
ject in  all  other  respects,  to  the  provisions  contained  in  section 
2680.      [92  v.  430.] 

Sec.  2680d  R.  S.  [Same  in  Washington  county.]  That  in 
Washington  county  in  which  such  library  association  mentioned 
in  said  section  2680  shall  be  formed,  and  in  which  there  is  no 
police  court,  twenty-five  per  cent,  of  all  fines  and  penalties 
which  are  assessed  and  collected  by  the  common  pleas  and 
probate  courts  of  such  counties  for  offenses  and  misdemeanors 
prosecuted  in  said  courts,  less  the  compensation  allowed  by  law 
to  the  prosecuting  attorney  of  the  county  in  state  cases,  shall  be 
paid,  quarterly,  by  the  clerk  of  the  court  of  common  pleas  and 
the  probate  judge,  respectively,  to  the  trustees  of  such  library 
association,  and  that  one-fourth  of  all  fines  and  penalties  which 
are  assessed  and  collected  by  the  mayor  of  the  city  of  Marietta, 
prosecuted  in  the  name  of  the  state  or  said  city,  shall  be  paid 
quarterly  by  said  mayor  to  the  trustees  of  such  library  associa- 
tion, all  of  said  sums  so  paid  shall  be  expended  in  the  purchase 
of  law  books  and  the  maintenance  of  such  association,  subject 
in  all  other  respects  to  the  provisions  of  said  section  2680. 
[93  v,  505.] 


784  THE    OHIO    MUNICIPAL    CODE. 

XIX 
TAXATION  AND  EQUALIZATION. 

1.     TAXATION. 

Sec.  2690c  R.  S.  [Approval  of  levies  by  tax  commissioners  of 
certain  cities;  limitation  of  levy.]1  No  tax  shall  be  levied  upon 
the  property  of  any  such  city  2  by  the  council  thereof  or  any 
other  authority  therein,  except  by  the  boards  of  education  in 
cities  of  the  first  grade  of  the  first  class,  cities  of  the  third 
grade  of  the  first  class,  and  cities  of  the  first  grade  of  the 
second  class,  for  school  and  educational  purposes,  until  ap- 
proved by  the  board  of  tax  commissioners  aforesaid.  Provided, 
that  in  cities  of  the  third  grade  of  the  first  class  boards  of 
education  shall  not  levy  in  excess  of  seven  (7)  mills  on  the 
dollar  of  the  tax  property  thereof,  in  any  one  year.3  [May 
7,  1902,  95  v.  415 ;  93  v.  409 ;  83  v.  47 ;  81  v.  177 ;  80  v.  124, 
125.] 

(1)   Title,  division  and  chapter.      here,  and  §  2681  R.  S.,  which  will  be 
The    sestion    carried    here    was    in       found  under  Hamlets,  infra. 
Chap.  1,  Div.  9,  Title  XII,  R.  S.    All  (2)  This  refers  to  the  cities  men- 

tis sections  of  this  chapter  are  re-       tioned  in  §  2690a  R.  S.,  repealed, 
pealed  by  the  Code  except  that  given  (3)     See    §§    39    and    49    of    the 

Code,  pages  164  and  179, 

Sec.  2709  R.  S.  [Municipal  bonds  first  offered  to  sinking  fund 
trustees.] »  Whenever  any  municipal  corporation  issues  its 
bonds,  it  shall  first  offer  them  at  par  and  accrued  interest  to 
the  trustees  or  commissioners,  in  their  official  capacity,  of  the 
sinking  fund,  or,  in  case  there  are  no  such  trustees  or  com- 
missioners, to  the  officer  or  officers  of  such  corporation  having 
charge  of  its  debts,  in  their  official  capacity,  and  only  after  their 
refusal  to  take  all  or  any  of  such  bonds  at  par  and  interest, 
bona  fide  for  and  to  be  held  for  the  benefit  of  such  corporation, 
sinking  fund  or  debt,  shall  such  bonds,  or  as  many  of  them  as 
remain,  be  advertised  for  public  sale. 

[Not  to  be  sold  for  less  than  par.]  In  no  case  shall  the  bonds 
of  the  corporation  be  sold  for  less  than  their  par  value;  nor 
shall  such  bonds,  when  so  held  for  the  benefit  of  such  sinking 
fund  or  debt,  be  sold,  except  when  necessary  to  meet  the  re- 
quirements of  such  fund  or  debt. 


TAXATION    AND    EQUALIZATION.  785 

[Sold  to  highest  bidder  after  notice  by  publication.]  All  sales 
of  bonds,  other  than  to  the  sinking  fund,  by  any  municipal  cor- 
poration, shall  be  to  the  highest  and  best  bidder,  after  thirty 
days'  notice  in  at  least  two  leading  newspapers  of  opposite  poli- 
tics and  of  general  circulation  in  the  county  where  such  mu- 
nicipal corporation  is  situated,  setting  forth  the  nature,  amount, 
rate  of  interest  and  length  of  time  the  bonds  have  to  run,  with 
time  and  place  of  sale.  Additional  notice  may  be  published 
outside  of  such  county  by  order  of  the  corporation  council. 

[When  may  be  sold  at  private  sale.]  Provided,  however,  when 
any  such  bonds  have  been  once  so  advertised  and  offered  for 
public  sale,  and  the  same,  or  any  part  thereof,  remain  unsold, 
then  said  bonds,  or  as  many  as  remain  unsold,  may  be  sold  at 
private  sale  at  not  less  than  their  par  value,  under  the  direc- 
tion of  the  mayor,  and  the  officers  and  agents  of  the  corporation 
by  whom  said  bonds  have  been,  or  shall  be  prepared,  advertised 
and  offered  at  public  sale. 

[Refunding  of  corporate  indebtedness.]  Provided,  further, 
that  when  it  shall  appear  to  the  trustees  or  council  of  any  mu- 
nicipal corporation  to  be  for  the  best  interests  of  such  corpora- 
tion to  renew  or  refund  any  bonded  indebtedness  of  such  cor- 
poration which  shall  not  have  matured,  and  thereby  reduce  the 
rate  of  interest  thereon,  such  trustees  or  council  shall  have  au- 
thority to  issue  for  that  purpose  new  bonds,  with  semi-annual 
interest  coupons  attached  and  to  exchange  the  same  with  the 
holder  or  holders  of  such  outstanding  bonds,  if  such  holder  or 
holders  shall  consent  to  make  such  exchange  and  to  such  re- 
duction of  interest. 

[Rates  of  interest.]  But  the  rate  per  annum  of  interest  on 
any  such  new  bonds  thus  issued  in  exchange  by  any  city  of  the 
first  class,  or  by  any  city  of  the  first  or  second  grade  of  the 
second  class  shall  not  exceed  four  and  one-half  (4%)  per  cent., 
and  by  any  other  city  shall  not  exceed  five  (5)  per  cent.,  and  by 
other  municipalities  shall  not  exceed  five  and  one-half  (Si/o) 
per  cent. ;  such  new  bonds  shall  not  in  any  case  be  so  issued  in 
an  amount  in  excess  of  such  outstanding  bonded  indebtedness 
go  to  be  renewed  or  refunded,  and  may  be  in  such  denomina- 
tions and  payable  at  such  time  or  times  and  at  such  place  as 
may  be  determined  by  such  trustees  or  council.  [1902,  May 
10,  95  v.  507 ;  93  v.  340 ;  91.  v.  383 ;  88  v.  66 ;  87  v.  269 ;  80  v. 
168;  Eev.  Stat.  1880;  66  v.  263,  §  670.] 

(1)  New  Code  provisions. —  most  identical  with  §  97  of  the 
This  section  was  in  Chap.  2,  Div.  9,  Code.  §  2709  R.  S.  is,  however,  not 
Title  XII,  R.  S.     The  section  is  al-       expressly  repealed  by  the  Code. 

Sec.  2834  R.  S.  [Surplus  of  special  tax  or  loan  may  be  trans- 
ferred  to  general  fund.]     Whenever  there  is  in  the  treasury  of 


786  THE    OHIO    MUNICIPAL    CODE. 

any  city,  village,  hamlet,  county,  township  or  school  district, 
any  surplus  of  the  proceeds  of  a  special  tax,  or  of  the  proceeds 
of  a  loan  for  a  special  purpose,  which  surplus  is  not  needed  for 
the  purpose  for  which  the  tax  was  levied,  or  the  loan  made, 
such  surplus  may  be  transferred  to  the  general  fund  by  an  or- 
der of  the  proper  authorities  entered  on  their  minutes;  and 
whenever  there  is  in  the  treasury  of  any  cuch  civil  division,  at 
the  annual  meeting  or  meetings  otherwise  provided  by  law  at 
which  the  annual  tax  levy  is  to  be  considered  and  adopted  any 
surplus  not  exceeding  one  thousand  dollars  in  any  one  estab- 
lished fund  or  division  of  the  funds,  which  surplus  is  not  needed 
for  the  purpose  for  which  the  fund  was  created,  or  the  money 
appropriated,  or  the  tax  levied,  before  such  annual  tax  levy  is 
made,  such  surplus  may  be  considered  as  unappropriated  and 
may  be  reappropriated,  and  transferred,  by  an  order  as  afore- 
said, to  some  other  existing  fund  for  which  a  tax  is  to  be  or 
would  otherwise  be  levied,  and  the  sum  which  it  would  be 
necessary  to  raise  by  taxation  for  *  any  purpose,  if  no  such  re- 
apportionment was  made,  shall  thereupon  be  reduced  to  the  ex- 
tent of  the  transfer  thus  made ;  provided,  however,  that  this  act 
shall  in  no  wise  be  considered  as  authority  to  make  such  reap- 
portionments or  any  transfer  of.  funds  at  any  other  time  than 
the  meeting  aforesaid  to  determine  the  tax  levy  nor  to  author- 
ize transfers  at  any  one  such  meeting  of  over  three  thousand 
dollars  in  the  aggregate,  nor  that  the  amount  which  may  be 
lawfully  raised  by  taxation  for  any  purpose  may  be  increased 
by  such  transfer.1      [92  v.  77;  75  v.  132,  §  1.] 

(1)   Transfer    of    funds    under      provide   for   the   transfer   of   public 
the   Code.— See   §   43  of  the  Code,       funds,"  page  170. 
page    167,   and   "an   act   to   further 

An  act  to  authorize  the  council  of  any  incorporated  village  in 
Ohio  to  levy  an  additional  tax  for  fire  protection  purposes. 

[Sec.  1.]  [Village  council  authorized  to  levy  additional  tax  for 
fire  protection  purposes.]  That  the  council  of  any  incorporated 
village  in  the  state  of  Ohio,  be,  and  they  hereby  are,  authorized 
to  levy  an  additional  tax  of  five  mills  for  the  purpose  "of  defray- 
ing the  expense  of  constructing  and  maintaining  a  water  line, 
connecting  any  village  with  any  water  supply  and  for  the  pur- 
pose of  maintaining  said  pipe  line  for  fire  protection  purposes, 
to  any  village.  Said  tax  of  ^.ve  mills  to  be  levied  upon  all 
taxable  property  included  in  any  incorporated  village  for  the 
years,  1904,  1905,  1906,  1907  and  1908 ;  and  said  tax  to  be 
in  addition  to  the  taxes  now  authorized  by  law.  [1904,  April 
25,  97  v.  407.] 


TAXATION  AND  EQUALIZATION.  787 

[An  act  to  authorize  councils  of  villages  to  levy  a  tax  for 
street  lighting  and  fire  protection.] 

[Sec.  1.]  [Village  council  authorized  to  levy  tax  for  support 
of  municipal  waterworks  or  electric  light  plant.]  That  when 
waterworks  and  electric  light  plants  or  either  of  them  are 
owned,  run  and  controlled  by  any  village,  and  such  village 
receives  its  street  lighting  and  fire  protection  from  such  plant 
or  plants  and  the  proceeds  derived  from  the  operation  of  such 
plant  or  plants  is  found  to  be  insufficient  to  pay  the  expenses 
of  running  and  conducting  such  waterworks  and  electric 
[light]  plants,  or  either  of  them,  the  council  of  such  village 
may  levy  a  tax  not  to  exceed  five  mills  on  each  dollar  valua- 
tion of  all  the  taxable  property  listed  for  taxation  in  said 
village,  both  real  and  personal,  to  pay  the  running  expenses 
and  the  extensions  made  to  such  plant  after  applying  the  pro- 
ceeds of  such  [said]  plant  thereto.  Said  tax  to  be  in  addition 
to  all  other  tax  now  authorized  by  law.  [1906,  March  14,  98 
v.  46.] 

2.    PKOPEKTY  EXEMPT  FKOM  TAXATION. 

Sec.  2732  B.  S.  ]  Property  exempt.]  The  following  property 
shall  be  exempt  from  taxation : 

First.  [Schools  and  churches.]  1  All  public  school-houses, 
and  houses  used  exclusively  for  public  worship,  the  books  and 
furniture  therein,  and  the  grounds  attached  to  such  buildings 
necessary  for  the  proper  occupany,  use  and  enjoyment  of  the 
same  and  not  leased  or  otherwise  used  with  a  view  to  profit; 
all  public  colleges,  public  academies,  all  buildings  connected 
with  the  same,  and  all  lands  connected  with  public  institutions 
of  learning,  not  used  with  the  view  to  profit.  This  provision 
shall  not  extend  to  leasehold  estates  of  real  property  held  under 
the  authority  of  any  college  or  university  of  learning  in  this 
state.  Provided,  nevertheless,  that  all  leaseholds,  or  other  es- 
tates or  property  whatsoever,  real  or  personal,  the  rents,  issues, 
profits  and  income  of  which  have  been,  or  hereafter  shall  be 
given  to  any  city,  town,  village,  school  district  or  subdistrict  in 
this  state,  exclusively  for  the  use,  endowment,  or  support  of 
schools  for  the  free  education  of  youth  without  charge,  are  and 
shall  be  exempt  from  taxation  so  long  as  such  property,  or  the 
rents,  issues,  profits  and  income  thereof  shall  be  used  and  ap- 
plied exclusively  for  the  support  of  free  education  by  such  city, 
town,  village,   district  or  subdistrict. 

Second.  [Cemeteries.]  2  All  lands  used  exclusively  as  grave- 
yards, or  grounds  for  burying  the  dead,  except  such  as  are  held 
by  any  person,  persons,  company  or  corporation,  with  a  view 
to  profit,  or  for  the  purpose  of  speculating  in  the  sale  thereof. 

Third.  [State  and  federal  property.]  All  property,  whether 
real  or  personal,  belonging  exclusively  to  the  state  or  United 
States. 


788  THE    OHIO    MUNICIPAL    CODE. 

Fourth.  [County  buildings.]  All  buildings  belonging  to 
counties,  used  for  holding  courts,  for  jails,  or  for  county  offices, 
with  the  ground,  not  exceeding,  in  any  county,  ten  acres,  on 
which  such  buildings  are  erected. 

Fifth.  [Poor-houses.]  All  lands,  houses  and  other  buildings 
belonging  to  any  county,  township  or  town,  used  exclusively 
for  the  accommodation  or  support  of  the  poor. 

Sixth.  [Public  charities  and  armories.]  3  All  buildings  be- 
longing to  institution  [s]  of  purely  public  charity,  and  all  build- 
ings belonging  to  and  used  exclusively  for  armory  purposes  by 
lawfully  organized  military  organizations  which  are  and  shall 
continue  to  be  fully  armed  and  equipped  at  their  own  expense 
and  by  law  made  subject  to  all  calls  of  the  governor  for  troops 
in  case  of  war,  riot,  insurrection  or  invasion  together  with  the 
road  [land]  actually  occupied  by  such  institutions,  and  that 
owned  and  used  as  sites  for  such  armory  buildings  of  said  mili- 
tary organizations  not  leased  or  otherwise  used  with  a  view  to 
profit,  and  all  moneys  and  credits  appropriated  solely  to  sustain 
and  belonging  exclusively  to  said  institutions  and  military  or- 
ganizations. 

Seventh.    [Property  used  for  extinguishing  fires.]   All  fire-en 
gines  and  other  implements  used  to  [for]  the  extinguishment  of 
fires,  with  the  buildings  used  exclusively  for  the  safe-keeping 
thereof,   and  for  the  meeting  of  fire  companies,   whether  be- 
longing to  any  town  or  to  any  fire  company  organized  therein. 

Eighth.  [Other  public  property.]  4  All  market-houses,  pub- 
lic squares  or  other  public  grounds,  town,  or  township,  houses 
or  halls,  used  exclusively  for  public  purposes,  or  erected  by  tax- 
ation for  public  purposes,  notwithstanding  some  parts  thereof 
may  be  leased  under  and  by  virtue  of  section  2566  of  the  Re- 
vised Statutes  of  Ohio,  and  all  works,  machinery,  pipe-lines  and 
fixtures  belonging  to  any  town  and  used  exclusively  for  con- 
veying water  to  such  town,  or  for  heating  or  lighting  the  same, 
and  any  unpaid  taxes  assessed  against  any  property  comprised 
in  this  subdivision,  with  any  penalty  thereon,  is  hereby  re- 
mitted. 

Ninth.  [One  hundred  dollars  of  personal  property.]  Each 
individual  residing  in  this  state  may  deduct  a  sum  not  exceed- 
ing one  hundred  dollars  as  exempt  from  taxation,  from  the  ag- 
gregate listed  value  of  his  taxable  personal  property  of  any  kind 
of  which  such  individual  is  the  actual  owner,  except  dogs. 

Tenth.  [Soldiers'  monuments.]  All  funds  raised  and  set 
apart  for  the  purpose  of  building  monuments  to  the  fallen  sol- 
diers of  this  state,  and  all  monuments  and  monumental  build- 
ings, when  erected  shall  be  forever  exempt  from  taxation  for 
any  purposes  whatever.5  [91  v.  393,  216;  88  v.  95;  61  v.  39, 
§3;  S.  &  S.  761  (S.  &  C.  1440).] 


TAXATION  AND  EQUALIZATION.  789 

( 1 )  Schools  and  churches.  —  teen  years,  see  Zumstein  v.  Coal  & 
See  Gerke  v.  Purcell,  25  0.  S.  229;       Mining  Co.,  54  O.   S.,  264. 

State  v.  Cappelar,  6  B.  339;   Com-  Property  owned  by  a  municipal 

m'rs   v.   Mannix,    11    B.    184;    Ken-  corporation    is    not    exempt    from 

drick  v.   Farquhar,   8  O.   189;    Col-  taxation  unless  it  is  used  for  mu- 

lege  v.  State,  19  O.  110.  nicipal  purposes,  and  this  is  true, 

._.      _              .          0       r,  although  it  is  leased  by  the  muni- 

(2)  Cemeteries.— See  German  ci  lit  and  the  money  reaiized  is 
Ev.  Pr.  Cem.  v.  Brooks,  8  C.  C.  439.  applied  to  a  public  purp0se.     Cin- 

(3)  Public  charities. — For  in-  cinnati  v.  Lewis,  66  O.  S.  49. 
stitutions  of  purely  public  character  (5)  Exemptions  strictly  con= 
see  Gerke  v.  Purcell,  25  O.  S.  229;  strued.— Exemptions  from  taxa- 
Humphreys  v.  Little  Sisters  of  the  tion  must  be  strictly  construed. 
Poor,  29  O.  S.  201;  Lodge  v.  Hay-  Library  Ass'n  v.  Pelton,  36  O.  S. 
slip,  23  O.  S.  144;  Library  Ass'n  v.  253,  258;  Sturges  v.  Carter,  114 
Pelton,  36  O.  S.  253;  Davis  v.  Camp  U.  S.  521;  Lee  v.  Sturges,  46  O. 
Meeting  Ass'n,  57  O.  S.  257.  S.  153. 

(4)  Public  property. — Appara-  And  an  exemption  does  not  re- 
tus  belonging  to  a  city  used  for  lieve  from  a  local  assessment, 
supplying  gas  to  its  citizens,  is  Lima  v.  Cemetery  Ass'n,  42  O.  S. 
used   for  a    public   purpose   and    is  128. 

exempt.    Toledo  v.  Hosier,  54  O.  S.  Relief      for      property      erro= 

418  neously  taxed  may  be  had  under 

For  taxation  of  municipal  prop-  §  1038  R.  S.     Butler  v.  Comm'rs, 

erty  leased   for   more   than   four-  39  O.  S.  169. 

3.     EQUALIZATION  OF  TAXES. 
Board  of  Review  for  Municipal  Corporations. 

An  act  to  provide  for  the  appointment  of  a  board  of  review  for 
the  equalization  of  real  and  personal  property. 

[Sec.  1.]  [Upon  application  of  county  auditor,  state  board  of 
appraisers  and  assessors,  to  appoint  board  of  review  for  munici- 
pal corporation  in  county;  number  of  members;  qualifications; 
term ;  vacancies ;  removals.  ] 1  Upon  the  written  application  of 
the  county  auditor  of  any  county  to  the  state  board  of  ap- 
praisers and  assessors,  for  the  appointment  of  a  board  of  re- 
view for  any  municipal  corporation  of  such  county,  for  the 
equalization  of  real  and  personal  property,  moneys  and  credits 
within  such  municipal  corporation,  said  board  of  appraisers 
and  assessors  may  appoint  said  board  of  review,  to  be  com- 
posed of  three  citizens,  freeholders  of  such  municipal  corpora- 
tion not  more  than  two  of  whom  shall  belong  to  the  same  po- 
litical party,  one  member  of  such  board  to  be  appointed  for 
the  term  of  one  year,  one  member  for  the  term  of  three  years, 
and  one  member  for  the  term  of  five  years ;  and  thereafter 
at  the  expiration  of  the  term  of  any  member,  there  shall  be,  ap- 
pointed by  the  said  state  board  of  appraisers  and  assessors,  a 
freeholder  of  such  municipal  corporation  as  successor  to  such 
member  for  the  term  of  live  years,  and  all  vacancies  in  said 
board  shall  be  filled  for  the  unexpired  term  in  the  same  man- 
ner as  the  original  appointment.  The  state  board  of  apprais- 
ers and  assessors  may,  at  its  discretion,  remove  any  member  of 
said  board. 


790  THE    OHIO    MUNICIPAL    CODE. 

i 

[Powers  and  duties  of  board.]  Said  board  of  review  shall 
within  and  for  their  respective  municipalities  have  all  the  pow- 
ers and  perform  all  of  the  duties  heretofore  conferred  upon  or 
required  of  the  annual  city  board  for  the  equalization  of  the 
value  of  real  and  personal  property,  moneys  and  credits;  the 
decennial  city  board,  for  the  equalization  of  the  value  of  real 
property ;  and  the  annual  city  board  of  revision ;  and  the  decen 
nial  city  board  of  revision,  under  any  and  all  laws  now  in 
force,  pertaining  to  such  municipalities.  And  said  board  of 
review  shall  be  the  successor  of  said  board  of  revision,  said 
annual  city  board  and  said  decennial  city  board,  all  of  which 
boards  shall,  upon  the  appointment  of  a  board  of  review  in 
any  municipal  corporation  under  this  act  be  abolished.  Said 
board  of  review  shall  have  power  to  hear  complaints  and  to 
equalize  the  valuation  of  real  and  personal  property,  moneys 
and  credits  within  such  municipal  corporation  as  said  board  of 
review  may  be  located,  and  shall  be  governed  by  rules  pre- 
scribed for  the  government  of  decennial  county  and  city  boards, 
and  annual  county  and  city  boards,  for  the  equalization  of  real 
and  personal  property.      [95  v.  481.] 

[Sec.  2.  j  [Sessions  of  board.]  Said  board  of  review  shall 
meet  annually  at  the  office  of  the  county  auditor  on  the  first 
Monday  in  June,  and  shall  continue  in  session  from  day  to  day 
(except  Sundays  and  legal  holidays)  until  the  Saturday  pre- 
ceding the  first  Monday  in  June  of  the  following  year ;  provided 
that  the  state  board  of  appraisers  and  assessors  shall  have  the 
authority  to  fix  the  time  within  which  the  work  shall  be  com- 
pleted.     [95  v.  481.] 

[Sec.  3.]  [Compensation  of  members;  meetings,  where  held; 
clerks  and  other  employes.]  The  county  commissioners  shall 
Ox  the  salary  of  the  members  of  such  board  of  review,  which 
salary  shall  not  be  less  than  three  dollars  and  fifty  cents  per 
day  for  each  and  every  day  the  board  shall  be  in  session,  and 
not  to  exceed  two  hundred  and  fifty  ($250.00)  dollars  per 
month  for  the  time  such  board  may  be  in  session,  which  salary 
shall  be  payable  monthly  out  of  the  county  treasury  upon  the 
order  of  said  board  and  the  warrant  of  the  county  auditor : 

And  said  board  shall  meet  in  rooms  provided  by  the  county 
commissioners,  and  shall,  when  in  session,  devote  their  entire 
time  to  the  duties  of  their  office,  and  no  member  thereof  shall 
be  engaged  in  any  other  business  or  employment  during  the 
period  of  time  covered  by  the  session  of  the  board. 

Said  board  shall  have  power  to  employ  a  chief  clerk  and 
appoint  such  other  clerks,  not  exceeding  six  (6),  such  mes- 
sengers, not  exceeding  six  (6),  as  it  may  deem  necessary,  and 
fix  their  compensation,  which  shall  be  paid  out  of  the  county 
treasury  upon  the  order  of  said  board    and  the  warrant  of  the 


TAXATION    AND    EQUALIZATION.  791 

county  auditor,  and  such  incidental  expenses  as  said  board 
shall  deem  necessary,  shall  be  paid  out  of  the  county  treasury 
in  like  manner.      [95  v.  481;  97  v.  313.] 

[Sec.  4.]  [County  auditor  to  be  secretary  of  board;  duties  and 
compensation.]  The  county  auditor  of  any  county  in  which  any 
of  such  municipal  corporations  are  located  shall  be  secretary  to 
such  board,  and  shall  in  addition  to  his  other  duties  provided  by 
law,  be  present  at  each  meeting  of  the  board  in  person  or  by 
deputy ;  he  shall  keep  a  correct  record  of  the  proceedings  of  the 
board  in  a  book  to  be  kept  for  that  purpose,  and  perform  such 
other  duties  as  the  board  may  order,  or  as  may  be  incident  to 
his  position.  For  his  services  as  secretary  to  such  board  he 
shall  receive  out  of  the  county  treasury  upon  the  order  of  the 
board  five  ($5.00)  dollars  per  day  for  each  and  every  day  the 
board  shall  be  in  session.      [95  v.  481.] 

[Sec.  5.]  [Repeals.]  All  of  the  provisions  of  the  Kevised 
Statutes  of  the  state  of  Ohio,  are  hereby  repealed  in  so  far  as 
they  conflict  with  or  are  inconsistent  with  the  provisions  of 
this  act,  and  not  otherwise.2      [May  10,  1902,  95  v.  481.] 

(1)   Powers    and     duties. —  See  additional    tax.      McCormick    Har- 

generally,  notes  to  §  2805  R    S.,  in-  vesting  Machine  Co.  v.  Sims,  14  Dec. 

fra,  upon  powers  and  duties  of  city  15. 

boards     of     equalization;     and     see  (2)    Repeals. —  Sec.    2805    R.    S., 

notes  to  §  2807  R.  S.,  infra.  providing     for     annual     boards     of 

Acts  of  unconstitutional  board,  equalization  was  held  to  be  repealed 

—  In  making  addition  to  tax  return  by  this  act.     State  v.  Clarke,  68  O. 

cannot  be   collaterally   attacked,   in  S.  463;  State  ex  rel.  v.  Godfrey,  25 

action  to  restrain  collection  of  such  C.  C.  62. 

Annual  City  Board  of  Equalization. 

Sec.  2805 U.S.  [How  constituted  and  organized;  compensa- 
tion.] *  In  each  city  of  the  first  and  second  class  there  shall 
be  an  annual  board  for  the  equalization  of  the  value  of  real  and 
personal  property,  moneys,  and  credits  in  such  city,  to  be 
composed  of  the  county  auditor  and  six  citizens  of  such  city,  ap- 
pointed by  the  council  thereof,  except  in  cities  of  the  second 
grade,  first  class,  where  the  mayor  of  such  cities  shall  make  such 
appointments,  the  first  appointment  to  be  two  for  one  year, 
two  for  two  years,  and  two  for  three  years,  except  in  cities  in 
which  such  boards  are  already  organized,  when  two  shall  be 
appointed  for  three  years,  and  two  shall  be  thereafter  appointed 
annually  for  three  years;  and  all  vacancies  shall  be  filled  for 
the  unexpired  term  provided,  that  the  provisions  of  this  act 
shall  not  affect  any  person  or  persons  heretofore  appointed, 
and  now  in  office,  during  the  time  for  which  they  shall  have 
been  appointed ;  but  in  cities  of  the  second  class,  third  grade  a, 
and  third  grade  c,  said  six  members  shall  be  appointed  by 
the  board  of  tax  commissioners,  and  the  appointment  of  said 
board  shall  be  so  made,  and  the  vacancies  shall  be  so  filled, 


792  THE    OHIO    MUNICIPAL    CODE. 

that  not  more  than  three  members  thereof  shall  be  of  the  same 
political  party,  faith  and  allegiance,  the  first  appointments  to 
be  two  for  one  year,  two  for  two  years,  and  two  for  three 
years,  and  all  the  vacancies  shall  be  filled  for  the  unexpired 
terms  from  persons  of  the  same  political  faith  as  those  whose 
terms  shall  have  expired.  Said  boards  shall  have  all  the  pow- 
ers, and  be  governed  by  the  rules,  provisions,  and  limitations 
prescribed  in  the  next  preceding  section,2  for  the  annual  county 
board;  each  member  of  said  board  is  authorized  to  administer 
oaths,  and  said  board  is  empowered  to  call  persons  before  them, 
and  examine  them,  under  oath,  in  regard  to  their  own  or  others' 
property,  moneys,  credits  and  investments,  and  the  value  there- 
of, and  to  equalize  the  value  of  real  and  personal  property, 
moneys,  credits,  and  investments  within  such  cities,  and  to 
order  any  property,  credit  or  investment  to  be  placed  on  the 
duplicate  for  taxation,  and  fix  the  value  thereof  according 
to  law,  which  has  not  been  listed  for  taxation,  and  to  increase 
the  value  of  such  property,  moneys,  credits  and  investments, 
as  have  in  their  judgment,  been  listed  at  less  than  their  true 
value  in  money,  and  to  reduce  the  value  of  such  property, 
moneys,  credits  or  investments  as  have  been  appraised  above 
their  true  value  in  money,  and  shall  annually  meet  at  the  office 
of  the  county  auditor  on  the  fourth  Monday  in  May,  except  in 
cities  of  the  first  and  second  grade  of  the  first  class,  when  it  shall 
meet  on  the  fourth  Monday  in  May,  and  shall  close  its  session 
on  or  before  the  second  Monday  of  September;  except  that  in 
cities  of  the  third  grade  of  the  first  class,  and  in  cities  of  the 
first  and  second  grades  of  the  second  class  and  in  cities  of  the 
second  alass,  third  grade  a,  and  cities  having  a  population  of 
twenty  thousand  and  over  by  the  last  federal  census,  and  which 
have  not  been  by  ordinance  advanced  to  a  city  of  the  second 
grade  of  the  second  class,  said  board  shall  close  its  session  on 
or  before  the  first  Monday  of  August ;  and  in  cities  of  the  third, 
third  grade  c  and  fourth  grades  of  the  second  class,  said  board 
shall  close  its  session  on  or  before  the  fourth  Monday  of  June 
then  next  following.  For  each  day  necessarily  employed  in  the 
performance  of  their  duties,  the  members  of  said  board  shall 
each  receive,  in  cities  of  the  first  class,  and  in  the  first  and 
second  grades  of  the  second  class,  and  in  cities  of  the  second 
class,  third  grade  a,  and  in  cities  having  a  population  of  twenty 
thousand  and  over,  ascertained  as  aforesaid,  and  which  have 
not  been  advanced  to  a  city  of  the  second  grade  of  the  second 
class,  the  sum  of  five  dollars  per  day  and  in  cities  of  the  third 
grade  third  grade  c,   and  fourth  grade  of  the   second   class. 


TAXATION    AND    EQUALIZATION.  793 

the  sum  of  three  dollars  per  day,  and  in  cities  of  the  third  and 
fourth  grades  of  the  second  class,  not  county  seats,  the  members 
of  such  board  shall  receive,  in  addition  to  the  sum  of  three 
dollars  per  day,  ten  cents  per  mile  traveling  expenses  going  to 
the  said  county  seat ;  and  in  cities  of  the  first  class,  first  grade, 
the  auditor  shall  receive  no  compensation  as  a  member  of  the 
board,  but  the  board  may  appoint  all  necessary  messengers 
and  clerks,  not  exceeding  six  of  each,  who  shall  receive  three 
dollars  per  day  for  their  services,  for  the  time  actually  em- 
ployed, which  shall  be  paid  out  of  the  county  treasury.  The 
county  auditor  may  act  by  his  deputy  or  chief  clerk  in  all  city 
boards  of  equalization,  and,  in  addition  to  the  clerks  herein 
authorized,  the  auditor  of  the  county  having  a  city  of  the  first 
grade  of  the  first  class,  shall  appoint  a  clerk,  who  shall  be 
styled  the  chief  clerk  of  the  board  of  equalization,  at  a  salary 
of  five  dollars  for  each  day's  services  performed;  and  such 
boards  shall  each  have  the  same  powers  as  are  conferred  upon 
annual  county  boards  by  the  next  preceding  section,  and  upon 
complaint  of  the  presiding  officer  thereof  to  the  probate  judge, 
the  same  proceedings  shall  be  had  against  persons  notified  and 
neglecting  or  refusing  to  appear  before  them,  or  refusing  to 
swear,  or  answer  questions,  as  is  provided  in  section  two  thou- 
sand seven  hundred  and  eighty-three ;  and  county  solicitors,  or, 
where  there  is  no  such  office,  the  prosecuting  attorney  of  the 
county  shall  act  as  the  legal  adviser  and  attorney  for  the 
county  board,  and  the  city  solicitor  of  the  city  board  of  equaliza- 
tion; provided,  however,  that  this  act  shall  not  be  deemed  to 
supersede,  or  in  any  manner  affect  section  two  of  an  act  entitled 
"  An  act  supplementary  to  and  amendatory  of  title  XII  of  the 
Eevised  Statutes  of  Ohio,"  passed  March  26,  1891.  [93  v. 
618;  89  v.  21;  88  v.  177,  370;  87  v.  370;  86  v.  190,  192;  85 
v.  173,  328;  83  v.  234;  79  v.  71;  78  v.  179;  77  v.  81,  182; 
Kev.  Stat.  1880;  76  v.  95,  §  2;  (S.  &  S.,  755).] 

( 1 )   Powers    and     duties. —  See  one-half  its  nominal  value,   in  the 

State  ex  rel.  v.  Raine,  47  O.  S.  447 ;  absence  of  fraud,  it  is  conclusive  and 

State  ex  rel.  v.  Lewis,  1  C.  C.    (N.  the  county  auditor  cannot  add  the 

S.)   56;  25  C.  C.  227    (rev.  69  O.  S.  difference    between    the    value    fixed 

578);    Lewis  v.   Kramer,   69   O.    S.  and  the  nominal  value,  with  the  fifty 

473.  per    cent.     Sherard   v.    Lindsay,    13 

The  valuation  fixed  by  the  decen-  C.  C.  315 

nial  board  cannot  be  altered  by  the  The  board  must  act  upon  the  evi- 

annual   board   except   upon   reason-  dence  before  it  and  not  arbitrarily, 

able  notice  to  all  interested  parties.  Rawson  &  Co.  v.  Schott,  14  C.  C.  94; 

Phillips   v.    Hunter,    9    C.    C.    698;  Black  v  Hagerty,  16  C.  C.  255,  257; 

Banking  Co.  v.  Hubbard,  22  C.  C.  20.  McCormick  Harvesting  Machine  Co. 

A    judgment     pending    on     error  v.  Sims,  14  Dec.  15. 

should  be  returned  at  its  true  value,  The  powers  of  the  city  board  are 
but  if  the  annual  board  fixes  it  at 


794:  THE    OHIO    MUNICIPAL    CODE. 

statutory  and  must  be  strictly  con-  motives  and  legality  of  the  appoint- 

strued.       George     Scott's     Sons     v.  ments    of   members    of   a    board    of 

Eaine,  25   B.   154.  equalization,   as   long   as   the  board 

§§  2805  and  2807  R.  S.  limit  the  acts  within  its  jurisdiction.     Cleve- 

board's    authority    for    equalization  land  Electric  Ry.   Co.   v.   Board   of 

of  assessments  of  new  structures  to  Equalization,  8  N.  P.  487. 

such   as   are  returned    for   the   cur-  Nor  will  a  board  be  enjoined  from 

rent    year    by    the    assessor.      Gib-  increasing  valuation  because  mayor 

son  v.  Zumstein.     21  B.  318.  appointed    members    who    coincided 

Where  there  is  a  change   of  con-  with  his  views.     As  to  power  to  in- 

dition    it    is    within    the    discretion  crease  valuations  because  of  previous 

-A                 i   i.       j   x       i.            xi.  increases   on   other    property,    being 

of  the  annual  board  to  change  the  invalidated  by  Gayi0Frd  V  Hubbard, 

valuation.     Black  v.  Hagerty,   16  C.  56  O.   S.  25,  see  Brooks  v.  Lander, 

C.  255.  13  Dec.  634. 

But    the     state    auditor     cannot,  Validity.— This  act  held   consti- 

.                  ,     .  tutional.     Cleveland    Elec.    Ry.    Co. 

save    by     appeal     in    manner     pro-  y    Board   of   Equalizatioilj   g  ^   R 

vided  by  law.     lb.  487. 

He  may,  however,  correct  clerical  Section     now    superseded,    see 

errors.     lb.  note  2>  P-  791. 

A   court   of   equity   will   not   act  J>>  *»  rff.^m*** 

upon     allegations     questioning    the  Raine,  47  O.  S.  447,  458. 

Sec.  2805 — 1  K.  S.  [Springfield  improvements  if  assessed.]  §  5. 
In  cities  of  the  second  class,  third  grade  a,  the  provisions  of 
section  2702,  of  the  Revised  Statutes  of  Ohio,  shall  not  be  held 
applicable  in  case  of  the  improvement  of  public  streets,  alleys, 
avenues  or  spaces,  or  in  the  construction  of  sewers,  sidewalks, 
curbs,  or  gutters,  where  the  whole  or  any  part  of  the  cost  of 
such  improvement  is  to  be  assessed  upon  the  abutting  or  other 
benefited  lots  and  lands  in  such  cities.      [89  v.  23.] 

Sec.  2805 — 2  R.  S.  [Springfield  improvements  if  contracted 
for.]  §  6.  In  cities  of  the  second  class,  third  grade  a,  the 
provisions  of  section  2702,  Eevised  Statutes,  shall  not  be  held 
to  apply  to  any  of  the  improvements  enumerated  in  section  5 
[§(2805 — 1)]  of  this  act  which  are  now  either  contracted  for 
or  are  now  in  process  of  construction.      [89  v.  23.] 

Sec.  2805a  R.  S.  [Power  of  the  Cincinnati  and  Cleveland 
boards  as  boards  of  revision.]  And  in  each  city  of  the  first  and 
second  grade,  class  first,  the  county  auditor  may,  whenever  he 
may  deem  it  necessary  to,  call  together  the  annual  city  board  of 
equalization  on  the  first  Monday  of  December  of  each  year, 
and  the  said  board  when  so  called  together,  shall  sit  as  a  board 
of  revision  of  such  acts  done  by  it  as  a  board  of  equalization  at 
the  previous  meeting  thereof,  as  the  county  auditor  may  present 
to  it  for  its  revision.  But  before  acting  as  a  board  of  revision, 
the  members  thereof  shall  be  sworn,  by  a  competent  officer,  to  a 
faithful  discharge  of  their  duties  as  such  board,  and  any  re- 
funder,  abatement,  or  change  of  value,  which  said  board  of 
revision  may  recommend  to  be  made,  shall  be  deemed  and  held 


TAXATION    AND    EQUALIZATION.  795 

in  a  case  of  refunder  or  abatement,  to  be  sufficient  authority  for 
the  county  auditor  to  issue  his  order  of  refunder  or  abatement, 
on  the  county  treasurer,  and  in  case  of  change  of  value,  such 
recommendation  of  change  by  said  board  shall  be  deemed  and 
held  sufficient  authority  for  said  officer  to  enter  the  same  in  his 
book  of  additions  and  deductions,  and  all  acts  of  the  said 
board  of  revision  shall  be  subject  to  an  appeal,  through  the 
county  auditor,  to  the  auditor  of  the  state;  said  board  of  revi- 
sion shall  have  power  to  administer  any  oath  which  it  may  deem 
necessary  to  the  proper  discharge  of  its  duties;  it  shall  not 
continue  in  session  for  a  longer  time  than  four  weeks.  Public 
notice  shall  be  given  by  the  county  auditor  of  each  meeting  of 
said  board,  and  its  members  shall  be  paid  the  same  amount  per 
day,  as  when  sitting  as  a  board  of  equalization.  [1888,  April 
10:  85  v.  173,  174;  83  v.  234,  235;  78  v.  179,  180;  77  v.  81, 
82.] 

Sec.  2805b  B.  S.  [Cleveland  board;  appointment  and  term  of 
members.]  In  cities  of  the  second  grade  of  the  first  class  there 
shall  be  a  board  of  equalization  and  assessment,  to  be  composed  of 
three  members,  electors  of  said  city,  not  more  than  two  of  whom 
shall  belong  to  the  same  political  party,  who  shall  be  appointed 
by  the  probate  judge,  for  the  term  of  three  years;  provided, 
that  at  the  first  appointment,  which  shall  be  made  on  the  fourth 
Monday  of  April  after  the  passage  of  this  act,  or  as  soon  there- 
after as  practicable,  one  of  said  members  shall  be  appointed 
for  one  year,  one  for  two  years  and  one  for  three  years,  and 
annually  thereafter  one  member  shall  be  appointed  for  the 
term  of  three  years;  and  all  vacancies  shall  be  filled  by  ap- 
pointment for  the  unexpired  term.  The  probate  judge  may,  at 
discretion,  remove  any  member  of  said  board.      [89  v.  283.] 

Sec.  2805c U.S.  [Salary;  bond;  sessions,  etc.]  The  mem- 
bers of  said  board  shall  each  receive  a  salary  of  twenty-five 
hundred  dollars  per  annum,  and  shall  give  bond  in  the  sum 
of  five  thousand  dollars  to  the  approval  of  the  probate  judge. 
They  shall  devote  their  whole  time  to  the  duties  of  their  office 
and  no  member  shall  be  engaged  in  any  other  business  avocation 
or  employment.  The  board  shall  hold  daily  sessions  so  far 
as  practicable  and  a  record  of  its  proceedings  shall  be  kept.      [89 

v.  283.] 

i 

Sec.  2805dR.  S.  [Organization.]  The  said  board  shall  meet 
on  the  first  Monday  of  May  of  each  year  and  the  member  hav- 
ing the  shortest  time  to  serve,  not  holding  his  office  by  appoint- 
ment to  fill  a  vacancy,  shall  be  president  for  the  ensuing  year. 
The  county  auditor  shall  be  secretary  of  said  board,  and  for 


796  THE    OHIO    MUNICIPAL    CODE. 

his  services  in  that  behalf  shall  receive  a  salary  of  six  hundred 
dollars  per  annum  in  addition  to  any  salary  now  provided  by 
law.  The  auditor  shall  appoint,  subject  to  the  confirmation 
of  the  board,  a  chief  clerk  for  said  board,  who  shall  receive  a 
salary  of  fifteen  hundred  dollars  per  annum,  and  not  to  exceed 
three  assistant  clerks,  who  shall  .each  receive  a  salary  of  seventy- 
five  dollars  per  month,  and  shall  prescribe  their  duties.  The 
board  shall  appoint  such  number  of  messengers,  not  exceeding 
six,  as  may  from  time  to  time  be  required^  who  shall  each 
receive  three  dollars  per  day  for  their  services,  for  the  time 
actually  employed.  Not  more  than  one-half  of  said  clerks  or 
onerhalf  of  said  messengers  shall  belong  to  the  same  political 
party.      [89  v.  283.] 

Sec.  2805e  R.  S.  [Assessors.]  §  4.  In  every  city  of  the  second 
grade  of  the  first  class  the  said  board  shall,  annually,  on  or  be- 
fore the  second  Monday  of  April,  appoint  not  exceeding  forty 
assessors,  not  more  than  one-half  of  whom  shall  belong  to  the 
same  political  party,  who  shall  hold  their  office  for  the  term 
of  one  year,  but  may  be  removed  by  the  board  at  its  pleasure, 
and  who  shall  each  receive  for  his  services  a  compensation  of 
four  dollars  per  day  for  each  day  actually  employed  in  the 
performance  of  his  duties;  provided,  that  no  assessor  shall  in 
any  one  year  receive  compensation  for  more  than  thirty-six 
days'  service,  except  upon  the  order  of  the  board  and  the  ap- 
proval of  the  county  auditor.  Said  assessors  shall  have  the 
same  power  and  perform  the  same  duties  as  are  or  may  be 
provided  by  law  with  respect  to  township  assessors,  and  said 
board  shall  assign  such  assessors  to  the  different  wards  of  such 
city,  or  it  may  divide  such  city  into  districts  and  assign  them 
to  such  districts.  All  statements  of  statistics  and  the  quadren- 
nial enumerations  required  of  township  assessors  shall  be  made 
and  returned  by  the  assessors  appointed  by  said  board,  for  the 
wards  or  districts  to  which  they  may  be  respectively  assigned 
by  the  board.  Each  of  said  assessors  shall  give  bond  in  the  sum 
of  one  thousand  dollars  to  the  approval  of  the  board.  [89  v. 
283.] 

Sec.  2805f  It.  S.  [Equalization  of  valuation  of  real  property 
in  Cleveland.]  §  5.  Unconstitutional.  Gaylord  v.  Hub- 
bard, 56  O.  S.  25. 

Sec.  2805gR.  S.  [Certain  powers  given  to  board.]  §  6.  The 
said  board  shall  be  the  successor  of,  and,  except  as  otherwise 
provided  in  this  act,  shall  have  all  the  powers  and  perform 
all  the  duties  prescribed  by  law  for  the  decennial  -board  for  the 
equalization  of  the  value  of  the  real  property  within  such  city, 


TAXATION    AND    EQUALIZATION.  797 

of  the  annual  board  for  the  equalization  of  the  value  of  real 
and  personal  property,  moneys  and  credits  in  such  city,  and  oi 
the  last  named  board  as  a  board  of  revision;  also  of  the  board 
of  tax  commissioners  in  such  city.  Said  decennial  board  for 
the  equalization  of  the  value  of  real  property  and  said  annual 
board  for  the  equalization  of  the  value  of  real  and  personal 
property,  moneys  and  credits,  and  the  board  of  tax  commis- 
sioners, in  cities  of  the  second  grade  of  the  first  class,  are  here- 
by abolished ;  and  the  city  council  may  designate  said  board  of 
equalization  and  assessment  in  place  of  appointing  the  board 
provided  by  section  2279  of  the  Revised  Statutes,  in  which 
event  said  board  shall  have  all  the  authority  and  perform  all 
the  duties  provided  by  law  for  said  equalizing  board.  [89  v. 
283.] 

Sec.  2805hR.  S.  [Decennial  assessment  of  real  estate;  other 
powers.]  §  7.  The  decennial  assessment  of  real  estate  to  be 
made  in  the  year  1900  and  every  tenth  year  thereafter,  as 
provided  by  law,  shall,  in  cities  of  the  second  grade  of  the 
first  class  be  made  by  said  board,  and  for  that  purpose  it 
may  appoint  in  such  decennial  years,  such  numbers  of  assist- 
ants and  at  such  compensation  as  the  city  council  may  ap- 
prove. The  said  board  shall  have  all  the  powers  and  perform 
all  the  duties  now  provided  by  law  for  the  district  assessors 
of  real  estate  in  such  cities,  who  are  hereby  abolished,  and  all 
the  provisions  of  sections  2789,  2790,  2791,  2792,  2793,  2798 
and  2799  of  the  Revised  Statutes  pertaining  to  said  district 
assessors  of  real  property  in  such  cities,  shall  apply  to  and 
govern  said  board;  provided,  that  nothing  herein  contained 
shall  require  said  board  to  divide  such  city  into  districts  for 
the  purpose  of  such  assessment,  and  unless  the  context  otherwise 
require,  the  term  "  district "  in  said  sections  of  the  Revised 
Statutes  shall  be  construed  as  referring  to  such  city;  provided 
further,  that  the  return  of  the  amount,  description  and  value 
of  the  real  property  subject  to  be  listed  for  taxation  in  said 
city  shall  be  delivered  to  the  auditor  of  the  county  on  or 
before  the  first  Monday  of  November  in  each  decennial  year. 
[89  v.  283.] 

Sec.  2805i  R.  S.  [Payment  of  salaries,  etc.]  §  8.  The  sal- 
aries of  the  members  of  said  board  shall  be  paid  out  of  the  city 
treasury.  All  other  salaries  and  compensation  herein  provided 
for,  and  any  contingent  expenses  authorized  by  the  county  com- 
missioners, shall  be  paid  out  of  the  county  treasury.  [89  v. 
283.] 


798  THE    OHIO    MUNICIPAL    CODE. 

Sec.  2805j  R.  S.  [Rooms,  etc. ;  official  bonds.]  §  9.  The  coun- 
ty commissioners  of  the  county  in  which  any  such  city  is  located 
shall  provide  suitable  and  convenient  rooms  for  the  use  of 
the  board ;  and  all  stationery,  printing  and  supplies  needed  by 
said  board  shall  be  furnished  at  the  expense  of  the  county. 
All  official  bonds  required  to  be  given  by  this  act  shall  be  filed 
with  the  county  auditor.      [89  v.  283.] 

Sec.  2805k  R.  S.  [Penalty.]  §10.  Any  member  of  said 
board  who  shall  wilfully  neglect  or  refuse  to  perform  any  duty 
enjoined  on  him  by  law,  or  who  shall  consent  to  or  connive 
at  any  evasion  of  the  provisions  of  law  whereby  any  property 
required  to  be  assessed  shall  be  unlawfully  exempted  or  the 
valuation  thereof  entered  at  less  than  its  true  value,  shall, 
for  every  such  neglect,  refusal,  consent  or  connivance,  forfeit 
and  pay  not  less  than  the  sum  of  two  hundred  dollars  nor  more 
than  one  thousand  dollars,  to  be  recovered  by  action  in  the  name 
of  the  state,  and  he  shall  also  be  forthwith  removed  from  office. 
[89  v.  283.] 

Sec.  28051 R.  S.  [Annual  board  of  equalization;  appointment 
in  Columbus.]  §  1.  In  cities  of  the  first  grade  of  the  second 
class,  the  annual  board  for  the  equalization  of  the  value  of  real 
and  personal  property,  moneys  and  credits,  in  such  cities^ 
shall  be  composed  of  the  county  auditor  and  six  citizens  of 
such  cities  appointed  by  the  mayor  thereof,  for  the  term  of  one 
year,  three  members  of  which  board  shall  be  appointed  from 
each  of  the  two  leading  political  parties  in  such  cities.  [87 
v.  336.] 

Sec.  2805m  R.  S.  [Decennial  board.]  §  2.  In  cities  of  the 
first  grade  of  the  second  class,  the  decennial  board  for  the 
equalization  of  the  value  of  real  property  within  such  cities, 
shall  be  composed  of  the  county  auditor  and  six  citizens  of 
such  cities,  appointed  by  the  mayor  thereof,  three  members  of 
which  board  shall  be  appointed  from  each  of  the  two  leading 
political  parties  in  such  cities.      [87  v.  336.] 

Sec.  2805nR.  S.  [Powers  and  duties.]  §3.  Said  boards 
shall  have  all  the  powers,  and  be  governed  by  the  rules,  provi- 
sions and  limitations,  and  perform  the  same  duties  as  are,  or 
may  be  prescribed  by  law,  with  respect  to  like  boards  in  other 
cities;  provided,  that  such  annual  city  board  of  equalization 
shall  close  its  session  on  or  before  the  first  Monday  of  August. 
[87  v.  336.] 

Sec.  2805o  R.  S.  [Compensation.]  §  4.  For  each  day  nec- 
essarily employed  in  the  performance  of  their  duties,  the  mem- 
bers of  said  boards  shall  each  receive  the  following  compenea- 


TAXATION    AND    EQUALIZATION.  799 

tion,  to-wit:  the  members  of  said  annual  city  board  the  sum 
of  three  dollars  per  day ;  the  members  of  said  decennial  board, 
the  sum  of  five  dollars  per  day.      [87  v.  336.] 

Duties  and  Powers  of  Boards. 

Sec.  2806  E.  S.  [Duties  of  auditor  and  state  board  of  equali- 
zation.] The  county  auditor  shall  lay  before  each  of  the  above- 
named  boards,1  for  the  territory  they  respectively  have  juris- 
diction over,  the  returns  of  the  assessors  for  the  current  year, 
and  such  returns  as  are  required  to  be  made  to  the  county  audi- 
tor as  is  provided  in  section  two  thousand  seven  hundred  and 
forty-four  and  also  the  valuation  of  the  real  estate  as  the  same 
was  entered  on  the  duplicate  of  the  preceding  year,  or  as  fixed 
by  the  state  board  of  equalization,  with  such  maps,  returns,  lists, 
abstracts  and  other  papers  that  may  be  in  the  auditor's  office 
pertinent  to  their  duties,  and  each  of  said  boards  shall  keep 
a  regular  journal  of  its  proceedings,2  which  shall  be  deposited 
with  the  auditor.3  [1883,  March  9:  80  v.  54;  77  v.  191,  192; 
Rev.  Stat.  1880;  56  v.  175,  §  46;  (S.  &  C.  1457).] 

(1)  This  refers  to  both  city  and  35  O.  S.  397,  in  conflict  with  this 
«cunty  boards.  statement.    Scott's  Sons  v.  Raine,  25 

(2)  Minutes    conclusive    as    to       B.    154,   162. 

action   of    board. —  The   action    of  (3)    Annexation. —  Territory    an- 

the  board,  as  evidenced  by  its  min-  nexed  to  a  city  prior  to  meeting  of 

utes,  must  be  regarded  as  conclusive  county     board     of     equalization     is 

in  the  absence  of  fraud  or  mistake;  equalized  by   city  board.      State   ex 

nor  is  the  case  of  Fratz  v.  Mueller  iel.  v.  Holmes,  20  O.  S.  474. 

Sec.  2807  R.  S.  [Equalizing  of  assessments;  deduction  for  de- 
stroyed personal  property.]  The  said  boards  shall  hear  complaints 
and  equalize  the  assessments  of  all  personal  property,  moneys 
and  credits,  new  entries  and  new  structures  1  returned  for  the 
current  year,  by  the  township  assessors  and  county  auditors; 
and  they  shall  have  power  to  add  to,  or  deduct  from  the 
valuation  of  personal  property,  or  moneys  or  credits,  of  any 
person  returned  by  the  assessor  or  county  auditor,  or  which 
may  have  been  omitted  by  them,  or  to  add  other  items  upon 
such  evidence  as  shall  be  satisfactory  to  the  said  boards  2  wheth- 
er said  return  be  made  upon  oath  of  each  person  or  upon  the 
valuation  of  the  assessor  or  county  auditor,  but  when  any 
addition  shall  be  ordered  to  be  made  to  any  list  returned  under 
oath,  a  statement  of  the  facts  upon  which  such  addition  was 
made,  shall  be  entered  on  the  journal  of  the  boards.3  Provid- 
ed, that  no  such  addition  shall  be  made  to  such  list  returned 
under  oath  without  the  board  having  first  given  reasonable  no- 


800 


THE    OHIO    MUNICIPAL    CODE. 


tice  4  to  the  person  or  persons  (if  their  residence  be  within  the 
county)  whose  personal  property  is  sought  to  be  added  to,  or 
the  valuation  thereof  increased,  to  appear  before  said  board  at 
a  time  and  place  to  be  fixed  by  said  board,  and  show  cause 
why  such  addition  should  not  be  made,  or  why  such  valuation 
should  not  be  increased;  and  when  any  reduction  shall  be  or- 
dered to  be  made  in  the  amount  of  personal  property,  or 
moneys  or  credits  of  any  person,  whether  such  return  be  made 
by  such  person  or  by  the  assessor  or  county  auditor,  a  statement 
of  the  facts  on  which  such  reduction  was  made  shall  be  en- 
tered on  the  journal  of  the  boards.  And  such  boards  shall 
have  power,  whenever  it  is  made  to  appear  to  their  satisfaction 
that  any  personal  property  returned  by  the  township  assessors 
or  county  auditors,  for  the  current  year,  has  been  destroyed 
by  fire,  flood,  tornado  or  otherwise,  after  the  second  Monday 
in  April  and  before  the  final  adjournment  of  said  boards,  to 
deduct  from  the  valuation  of  the  personal  property,  or  moneys 
or  credits  of  the  owner  uf  such  destroyed  property  so  re- 
turned, the  value  of  the  personal  property  so  destroyed.  [92 
v.  218 ;  83  v.  231 ;  80  v.  54;  77  v.  75,  76,  191,  192 ;  Rev.  Stat. 
1880;  56  v.  175,  §  46;  (S.  &  C.  1457).] 

And  as  a  general  rule,  the  deci- 
sions of  officers  charged  with  the 
duty  of  valuing  property  for  taxa- 
tion and  equalizing  valuations,  are 
final  and  conclusive.  Wagoner  v. 
Loomis,  37  0.  S.  571. 

See  further  Britton  v.  Baker,  12 
Dec.  107. 

(3)  Statement  of  facts  in 
journal. —  The  provision  in  the  stat- 
ute "  a  statement  of  facts  on  which 
such  addition  is  made  shall  be  enter- 
ed on  the  journal "  is  mandatory. 
Fratz  v.  Mueller,  35  O.  S.  397 ;  Rat- 
terman  v.  Niehaus  et  al.,  4  C.  C. 
502. 

(4)  Service  off  notice. —  Notice 
must  be  given  to  all  parties  inter- 
ested before  addition  is  made,  and 
must  be  served  personally  and  proof 
made  to  that  effect.  Simply  mail- 
ing letter  containing  notice  is  not 
sufficient.  Hayes  v.  Yost,  24  C.  C. 
18.  See  also  Moore  v.  Given,  39  O. 
S.  661;  Perkins  Zumstein,  4  C.  C. 
371. 

When  notice  not  required. — 
—  Notice  required  by  §  2807  R.  S. 
is  not  necessary  in  the  case  of  new 
structures.  Sehindler  v.  Lewis,  16 
C.  C.  348 ;  Scott's  Sons  v.  Raine,  25 
B.  154,  157. 


(1)  New  structures.  —  New 
structures  defined,  see  State  v.  Lew- 
is, 20  C.  C.  319;  Sehindler  v.  Lewis, 
16  C.  C.  348. 

(2)  Board  must  act  on  evi- 
dence.—  Additions  must  be  made 
on  satisfactory  evidence  and  not  ar- 
bitrarily. Fratz  v.  Mueller,  35  O.  S. 
397;  Rawson  &  Co.  v.  Schott,  14  C. 
C.  94;  Black  v.  Hagerty,  16  C.  C. 
255,  257. 

And  the  facts  which  concern  the 
correctness  and  completeness  of  each 
separate  item,  which  have  been 
proved  to  the  board  by  satisfactory 
evidence,  must  be  stated  clearly  in 
the  record,  so  that  reviewing  au- 
thorities may  know  upon  what  facts 
the  board  acted.  Hayes  v.  Yost,  24 
C.  C.  18;  Ratterman  v.  Niehaus,  4 
C.  C.  502. 

And  additions  without  evidence 
are  unauthorized.  Wise  v.  Krom- 
berg,  3  B.  863. 

Evidence  must  be  acted  on  by  ma- 
jority of  board.  Hirschman  v. 
Fratz,  7  B.  35. 

But  a  board  should  act  if  it 
thinks  the  return  ie  below  true  val- 
ue, though  no  complaint  is  made. 
State  v.  Sullivan,  15  C.  C.  333;  aff'd, 
58   O.   S.   504. 


TAXATION    AND    EQUALIZATION.  801 

The  addition  of  a  new  item  by  the      levy.     Jones  v.  Davis,  35  O.  S.  474, 
board  and  an  order  to  the  auditor      479. 
to  place  it  on  the  duplicate  is  not  a  __ 

Decennial  City  Board.1 
Sec.  2815 U.S.     [City  board:  how  constituted  and  organized.] 

In  each  city  of  the  first  and  second  class  there  shall  be  a  decen- 
nial board  for  the  equalization  of  the  value  of  the  real  property 
within  such  city,  to  be  composed  of  the  county  auditor,  and  six 
citizens  of  such  city,  appointed  by  the  council  thereof,  except 
that  in  cities  of  the  first  grade  of  the  first  class,  said  six  mem- 
bers shall  be  appointed  by  the  city  comptroller  of  such  city,  and 
shall  consist  of  three  members  of  each  of  the  two  leading  politi- 
cal parties. 

Said  board  shall  convene  at  the  office  of  the  county  auditor,  on 
the  first  Monday  of  August,  in  the  year  one  thousand  nine  hun- 
dred, and  every  tenth  year  thereafter,  and  shall  close  its  session 
on  or  before  the  third  Monday  in  October  then  next  following ; 
and  they  shall  severally  take  the  same  oath  2  as  that  prescribed 
for  the  decennial  county  board ;  and  a  record  of  the  proceedings 
and  orders  of  said  decennial  city  board  of  equalization  shall  be 
kept  by  the  auditor.  [94  v.  337 ;  93  v.  619 ;  88  v.  178 ;  87  v. 
.334;  77  v.  73;  E.  S.  of  1880;  65  v.  166,  §  40  (S.  &  S.  753).] 

(1)    For  an  act  relating  to  com-  (2)    Oath. —  The    members    of    a 

pensation   of   decennial   city  boards  board   of  review,   having  taken  the 

in   Cincinnati   and   Cleveland   for   a  oath   of   office   are   not   required   to 

certain  period  of  service,  see  95  O.  take   another   oath   when   acting  as 

L.  3.  decennial  board  of  equalization.     N. 

Constitutionality.  —  See     Scar-  C.  Harmony  Lodge  v.  Hagerty,  28 

borough  v.  Gibson,  13  Dec.  738;  1  N.  B.  67. 
P.  (N.  S.)  77  (aff'd,  69  0.  S.  578). 

Sec.  2816  R.  S.  [Powers;  clerks;  compensation.]  The  said 
board  shall  as  to  the  real  estate  within  such  city,  have  the 
same  powers,  perform  the  same  duties,  and  be  governed  by  the 
same  rules,  provisions  and  limitations  as  the  decennial  county 
board  of  equalization,1  and  in  cities  of  the  first  grade  of  the 
first  class,  said  board  may  appoint  a  chief  clerk  who  shall  be 
entitled  to  receive  for  each  day  necessarily  employed  in  the 
performance  of  his  duties  a  sum  not  exceeding  four  dollars, 
to  be  paid  out  of  the  county  treasury,  after  the  same  has  been 
approved  by  the  county  commissioners;  said  board  may  also 
employ  such  other  clerks  as  may  be  necessary,  who  shall  be  en- 
titled to  receive  not  exceeding  four  dollars  per  day  each  for  the 
time  necessarily  emploved,  to  be  paid  out  of  the  county  treas- 
ury.    [87  v.  338 ;  65  v.  166,  §  40 ;  S.  &  S.  758.] 

(1)   Powers. —  See    N.    C.    Har-  increasing  the  grand  total  of  a  de- 

mony  Lodge  v.  Hagerty,  28  B.  67,  cennial    appraisement,    as    fixed    by 

71.  city  decennial  board  of  equalization. 

City  decennial  board  of  revision  Scarborough  v.  Gibson,  13  Dec.  738 

is    not    forbidden    by    §    2814    from  (aff'd,  69  O.  S.  578). 


802  THE    OHIO    MUNICIPAL    CODE. 


XX 

INTOXICATING  LIQUORS. 

1.     DISTRIBUTION  OF  DOW  TAX. 

Sec.  4364 — 17  R.  S.     [Distribution   of   tax   under   Dow   Law.] 

§  9.  That  the  revenues  and  fines  resulting  under  the  provisions 
of  this  act 1  shall  be  distributed  as  follows,2  to- wit :  In  every 
county  three-tenths  of  the  money  paid,  as  herein  provided ; 
into  the  county  treasury  on  account  of  any  business  aforesaid, 
carried  on  in  any  city,  village,  hamlet  or  township  therein, 
shall  be  passed  to  tht  credit  of  the  general  revenue  fund  of  the 
state  and  paid  into  the  state  treasury  by  the  county  treasurer, 
as  is  provided  in  other  cases ;  five-tenths  of  the  money  so  paid, 
shall,  upon  the  warrant  of  the  county  auditor,  be  paid  on  ac- 
count of  any  business  aforesaid,  carried  on  in  any  such  munici- 
pal corporation  or  township  into  the  treasury  of  said  corpora- 
tion or  township,  one-half  to  the  credit  of  the  police  fund,  and 
one-half  to  the  credit  of  the  general  revenue  fund  thereof :  pro- 
vided, in  corporations  having  no  police  fund  the  entire  five- 
tenths  shall  be  passed  to  the  credit  of  the  general  revenue  fund 
thereof,  and  in  townships  having  no  police  fund,  said  one-half 
of  five-tenths  shall  be  passed  to  the  credit  of  the  poor  funds 
thereof;  and  the  remaining  two-tenths  part  thereof,  together 
with  all  other  revenues  resulting  hereunder  in  said  county, 
shall  be  passed  to  the  credit  of  the  poor  fund  of  said  county ; 
provided,  that  in  all  counties  in  which  there  is  no  county  in- 
firmary said  remaining  two-tenths  part  thereof  shall  be  passed 
to  the  credit  of  the  infirmary  fund  or  the  poor  fund  of  the  town- 
ship, village  or  city  in  which  the  same  shall  have  been  collected : 
and  in  such  counties,  when  the  money  is  paid  on  account  of  any 
business  carried  on  in  any  township  outside  of  any  such  munici- 
pal corporation,  said  five-tenths,  also,  shall  be  passed  to  the 
credit  of  the  infirmary  fund  or  the  poor  fund  of  said  township ; 
[Hamilton  county.]  And  provided,  that  in  counties  having  a 
city  of  the  first  grade  of  the  first  class  with  a  city  infirmary 
and   a  county  infirmary,  the   above  two-tenths   part   shall   be 


INTOXICATING    LIQUORS.  803 

divided  as  follows :  The  city  infirmary  fund  shall  have  passed 
to  its  credit  two-tenths  of  all  the  money  so  paid  in  said  city 
of  the  first  grade  of  the  first  class;  the  county  infirmary  fund 
shall  have  passed  to  its  credit  two-tenths  of  all  the  money  so 
paid  in  by  any  village,  hamlet  or  township  in  said  county, 
outside  of  said  city  of  the  first  grade  of  the  first  class ;  and  the 
the  above  five-tenths  part  of  all  the  money  so  paid  in  by  any 
township,  outside  of  any  municipal  corporation,  shall  be  paid 
into  the  treasury  of  such  township,  to  be  distributed  by  the 
order  of  the  trustees  of  said  township  to  the  general  revenue 
fund  and  poor  relief  fund,  in  such  proportions  as  said  trustees 
may  deem  proper.  [93  v.  37  ;  92  v.  34 ;  87  v.  357  ;  85  v.  117 ; 
83  v.  157.] 

( 1 )  Dow  law. —  The  act  referred  must  be  paid  over  by  the  treasurer 
to  is  the  "  Dow  Law  "  of  which  this-  according  to  law.  Ratterman  v. 
section  is  a  part.  State,  44  O.  S.  641 ;  see  also  Frame 

(2)  Money  how  distributed.—  v.  State,  53  O.  S.  311. 
Money     collected    under    Dow    law 

[Sec.  9a.]  [Disposal  of  surplus  Dow  tax.]  All  moneys  passed 
to  the  credit  of  any  city  infirmary  fund,  under  the  provisions 
of  the  section  to  which  this  is  supplementary,  and  all  moneys 
placed  to  the  credit  of  such  fund  from  any  other  source  what- 
soever, not  used  for  the  support,  maintenance  and  operation  of 
such  infirmary  during  any  fiscal  year  ending  December  31st, 
shall  be  placed  by  the  auditor  of  the  city  to  the  credit  of  and 
for  the  use  of  the  police  department  of  such  city.      [97  v.  286.] 

2.     BEAL  LOCAL  OPTION  LAW.1 

Sec.  4364— 20  R.  S.  [Closing  of  saloons  on  Sunday.]  [§  1.] 
That  the  sale2  of  intoxicating  liquors,  whether  distilled,  malt 
or  vinous,  on  the  first  day  of  the  week,  commonly  called  Sun- 
day, except  by  a  regular  druggist  on  a  written  prescription 
of  a  regular  practicing  physician  for  medical  purposes  only,  is 
hereby  declared  to  be  unlawful,  and  all  places  where  such  in- 
toxicating liquors  are  on  other  days  sold  or  exposed  for  sale, 
except  regular  drug  stores,  shall  on  that  day  be  closed,3  and 
whoever  makes  any  such  sales,  or  allows  any  such  place  to  be 
open  or  remain  open  on  that  day  shall  be  fined  in  any  sum  not 
exceeding  one  hundred  dollars  and  not  less  than  twenty-five 
dollars  for  the  first  offense,  and  for  each  subsequent  offense  shall 
be  fined  not  more  than  two  hundred  dollars  or  be  imprisoned 
in  the  county  jail  or  city  prison  not  less  than  ten  days  and  not 
exceeding  thirty  days,  or  both.4 


804 


THE    OHIO    MUNICIPAL    CODE. 


[Hotels  and  eating  houses.]  In  regular  hotels  and  eating 
houses  5  the  word  "  place  "  herein  used  shall  be  held  to  mean 
the  room  or  part  of  room  where  such  liquors  are  usually 
sold  or  exposed  for  sale  and  the  keeping  of  such  a  room  or  part 
of  room  securely  closed  shall  be  held,  as  to  such  hotels  and  eating 
houses,  as  a  closing  of  the  place,  within  the  meaning  of  this  sec- 
tion. 

[Municipal  regulations.]  And  any  municipal  corporation  shall 
have  full  power  to  regulate  6  the  selling,  furnishing  or  giving 
away  of  intoxicating  liquors  as  a  beverage  and  places  where 
intoxicating  liquors  are  sold,  furnished  or  given  away  asa"  bev- 
erage," except  as  provided  for  in  section  4364-20c  of  this  act. 
[1902,  April  3 :  95  v.  87.] 


(1)  Beal   local  option  law. — 

§§  (4364-20)  to  §  (4364-2(K)  consti- 
tute the  Beal  Local  Option  law, 
passed  April  3,  1902.  For  reference 
to  this  act  in  the  new  Code,  see  par. 
5,  §  7,  page  47. 

Validity. — The  Beal  law  was 
held  constitutional  in  Lloyd  v.  Dol- 
lison,  23  C.  C.  571;  3  C.  C.  (N.  S.) 
328  (afFd,  68  O.  S.  688)  ;  (U.  S. 
Sup.  Ct.,  3  O.  L.  R.  23 ;  14  0.  F.  D. 
380). 

As  to  validity  of  former  §  4364-20 
R.  S.,  see  Madden  v.  Smeltz,  2  C.  C. 
168;  Van  Wert  v.  Brown,  47  O.  S. 
477. 

(2)  Sale  within  the  meaning  of 
this  act  is  defined  in  Kaufman  v. 
Hillsboro,  45  O.   S.  700. 

Single  sale,  otherwise  than  as  al- 
lowed, is  a  violation.  Belle  Centre 
v.  Welsh,  24  B.  176;  Volk  v.  West- 
erville.     3  N.  P.  (N.  S.)  241. 

Several  sales  may  be  charged  in 
one  affidavit  and  a  fine  assessed  for 
each  offense,  even  though  aggregate 
exceeds  limit  of  fine  for  one  offense. 
Kubach  v.  State,  25  C.  C.  488;  2  C. 
C.   (N.  S.)   133. 

As  to  allegations  and  proof  of 
sale,  see  Monte  v.  Pabst,  14  Dec. 
97;  Kappes  v.  State,  25  C.  C.  723; 


4  C.  C.  (N.  S.)  14;  Oberer  v.  State, 
8  C.  C.  (N.  S.)  93;  Bromley  v.  Eu- 
clid, 15  Dec.  155;  2  N.  P.  (N.  S.) 
508. 

(3)  Place  must  be  closed  and 
not  merely  the  business,  and  failure 
to  close  the  place  is  an  infraction  of 
this  section.  State  v.  Heibel,  54  O. 
S.  321.  See  also  Effinger  v.  State,  9 
C.  C.  377. 

Covering  the  beer  pumps  and  sep- 
arating the  bar  by  a  wire  screen  do 
not  render  the  serving  of  meals  in 
the  place  on  Sunday  lawful.  Led- 
erer  v.  State,  5  C.  C.  623. 

(4)  Jurisdiction,  trial,  etc. — 
See   notes    under    §  43o4-20&,   infra. 

(5)  "Regular  hotels  and  eat- 
ing houses"  do  not  include  saloons 
where  meals  are  served,  the  serving 
of  meals  being  subordinate  and  not 
the  principal  business.  Lederer  v. 
State,  5  C.  C.  623. 

(6)  Power  of  councils  to  reg= 
ulate. — See  paragraph  5,  §  7  of  the 
Code  and  notes,  page  47,  et  seq. 

The  provisions  of  this  section  may 
be  enforced  by  a  penalty  which  coun- 
cil may  prescribe  by  ordinance.  Al- 
liance v.  Joyce,  49  O.  S.  7.  See  also 
as  to  power  of  councils,  Madden  v. 
Smeltz,  2  C.  C.  168. 


Sec.  4364— 20a  R.  S.   [Petition  for  an  election  on  saloon  ques- 
tion; special  election  to  be  held;  notice  and  conduct  of  election] 

That  whenever  forty  per  cent,  of  the  qualified  electors  of  any 
municipal  corporation  shall  petition  the  council  thereof  for  .the 
privilege  to  determine  by  ballot  whether  the  sale  of  intoxicating 
liquors  as  a  beverage  shall  be  prohibited  within  the  limits  of 
Page  804 


INTOXICATING    LIQUOKS.  805 

such  municipal  corporation,  such  council  shall  order  a  special 
election  to  he  held  in  not  less  than  twenty  nor  more  than  thirty 
days  from  the  filing  of  such  petition  with  the  mayor  of  the 
municipal  corporation  or  from  the  presentation  of  such  peti- 
tion to  said  council,  which  said  petition  shall  be  filed  as  a  public 
document  with  the  clerk  of  the  municipality,  and  preserved  for 
reference  and  inspection  and  which  election  shall  be  held  at 
the  usual  place  or  places  for  holding  municipal  elections,  and 
notice  shall  be  given  and  the  election  conducted  in  all  respects 
as  provided  by  law  for  the  election  of  members  of  the  council 
of  the  corporation,  so  far  as  said  law  may  be  applicable.1 

[Record  of  result  of  election;  its  value  as  evidence.]  The  result 
of  such  election  shall  forthwith  be  entered  upon  the  record  of 
the  proceedings  of  the  council  of  the  corporation  by  the  clerk 
thereof,  and  in  all  trials  for  violation  of  this  act,  the  original 
entry  of  the  record,  or  a  copy  thereof  certified  by  the  clerk  of 
the  corporation,  provided  that  said  record  shows  that  a  majority 
of  the  votes  cast  at  said  election  was  against  the  sale  of  intoxi- 
cating liquors  as  a  beverage,  shall  be  prima  facie  evidence  that 
the  selling,  furnishing  or  giving  away  of  intoxicating  liquors 
as  a  beverage  or  the  keeping  of  a  place  where  such  liquors  are 
sold,  kept  for  sale,  given  away  or  furnished,  if  such  selling, 
furnishing  or  giving  away  or  keeping  such  place  occurred  after 
thirty  days  from  the  day  of  holding  the  election,  was  then  and 
there  prohibited  and  unlawful.2      [1902,  April  3,  95  v.  87.] 

(1)     Petition. — That    forty    per  code. — This   section  making  provi- 

cent.  of  voters  have  signed  petition  sion  for  election  applies  to  hamlets 

must    affirmatively     appear    before  existing  before  new  Code.     Carey  v. 

council   can  order  election;    it  will  State,  70  O.  S.  121. 

not  be  presumed  because  council  has  Resolution  of  council  ordering 

ordered  election.     In  re  Huntsville  election  under   the   Beal   Law  need 

Local  Option  Election,  25  C.  C.  535;  not  be  read  on  three  different  days, 

1  C.  C.   (N.  S. )   489;  if  it  does  af-  but  three  readings  may  be  had  at 

firmatively  appear,  the  record  will  one  time.     Kumpf  v.  Delhi,  1  N.  P. 

be  presumed  to  be  regular.  lb.    Dal-  (N.  S.)    336. 

rymple  v.  State,  26  C.  C.  562;  5  C.  Publication  of  notice  for  a  pe- 

C.   (N.  S.)   185.  riod  less  than  ten  days  required  by 

Number    of    electors. — Forty    per  statute  is  not  fatal   to  validity  of 

cent,  of  those  who  cast  votes  at  last  election.  Fike  v.  State,  25  C.  C.  554. 

preceding  election  sufficient.     In  re  (2)  Collateral  attack. — Validity 

South  Charleston  Election,  3  N.  P.  of    special    election    cannot    be    col- 

(N.  S.)  373;  50  B.  173.  laterally  impeached  by  defendant  in- 

Withdraival  of  names  from  peti-  dieted    for     sale    contrary    to    law. 

tion  for  Beal  law  election  is  allow-  Fike  v.  State,  25  C.  C.  554.    But  see 

able  at  any  time  before  the  election  Stick  v.  State,  3  C.  C.   (N.  S.)  611; 

is    ordered;    and    if    enough    names  23  C.  C.  393,  where  it  is  held  state 

have  been  withdrawn  to  reduce  the  must  show  beyond  reasonable  doubt 

number    of    signers    below   that   re-  that  election  was  valid, 

quired,  election   cannot  be  ordered.  Failure  of  clerk  to  record  the  re- 

Haynes  v.  Hillsboro,  3  N.  P.  (N.  S.)  suit    of    the    election,    as    required, 

17;  50  B.  236.  does  not  invalidate  the  election,  if 

Applies  to  hamlets  before  new  the  election  and  result  thereof  can 


805(J  THE   OHIO    MUNICIPAL    CODE. 

be    established    by    other    evidence.       5  C.  C.   (N.  S.)   185. 
Dalrymple  v.   State,  26  C.  C.  562; 

Sec.  4364— 20b  R.  S.     [Ballots  to  be  voted  at  such  election.] 

The  ballots  at  any  special  election,  held  under  the  provisions 
of  this  act,  shall  be  printed  with  an  affirmative  and  a  negative 
statement,  to-wit :  "  The  sale  of  intoxicating  liquors  as  a 
beverage  shall  be  prohibited/'  u  The  sale  of  intoxicating 
liquors  as  a  beverage  shall  not  be  prohibited/'  with  a  blank 
space  on  the  left  side  of  each  statement  in  which  to  give  each 
elector  an  opportunity  to  clearly  designate  his  choice  by  a  cross 
mark  as  follows : 

( )      The  sale  of  intoxicating  liquors  as   a  beverage 

shall  be  prohibited. 

( )      The  sale  of  intoxicating  liquors  as  a  beverage 

shall  not  be  prohibited.1 

[When  the  sale  In  any  municipality  shall  be  unlawful ;  penalty 
for  making  such  prohibited  sale.]  And  if  a  majority  of  the  votes 
cast  at  such  election  shall  be  in  favor  of  prohibiting  the  sale 
of  intoxicating  liquors  as  a  beverage,  then  from  and  after  thirty 
days  from  the  date  of  holding  said  election  it  shall  be  unlawful 
for  any  person,  personally  or  by  agent,  within  the  limits  of  such 
municipal  corporation  to  sell,  furnish  or  give  away  any  intoxi- 
cating liquors  to  be  used  as  a  beverage,  or  to  keep  a  place 
where  such  liquors  are  kept  for  sale,  given  away  or  furnished, 
for  beverage  purposes,  and  whoever  from  and  after  the  thirty 
days  aforesaid-  in  any  manner  directly  or  indirectly,  sells,  fur- 
nishes, or  gives  away,  or  otherwise  deals  in  any  intoxicating 
liquors  as  a  beverage,  or  keeps  or  uses  a  place,  structure  or  ve- 
hicle, either  permanent  or  transient  for  such  selling,  furnishing 
or  giving  away  or  in  which  or  from  which  intoxicating  liquors 
are  sold,  given  away  or  furnished  or  otherwise  dealt  in  as  afore- 
said, shall  be  guilty  of  a  misdemeanor,  and  shall  on  conviction 
thereof,  be  fined  not  more  than  two  hundred  dollars  nor  less 
than  fifty  dollars  for  the  first  offense,  and  shall  for  a  second 
offense  be  fined  not  more  than  five  hundred  dollars  nor  less  than 
one  hundred  dollars,  and  for  any  subsequent  offense  be  fined 
not  less  than  two  hundred  dollars  and  be  imprisoned  not  more 
than  sixty  days  and  not  less  than  ten  days.8 

[Manufacturers  may  sell  at  wholesale  to  retail  dealers.] 
But  nothing  contained  in  any  of  the  sections  of  this  act  shall 
in  any  manner  affect  the  right  of  any  manufacturer  of  intoxi- 
cating liquors  from  the  raw  material,  to  sell,  deliver  and  furnish 
his  product  in  wholesale  quantities  to  bona  fide  retail  dealers 
trafficking  in  intoxicating  liquors,  or  in  wholesale  quantities 
to  any  party  or  parties  residing  outside  the  limits  of  said  munici- 
pality.     [1902,  April  3 :   95  v.  87.] 


NTOXICATING  LIQUORS. 


806 


(1)  Ballots. — Form  of.  See  In 
re  South  Charleston  Election,  8 
N.  P.   (N.  S.)   373;   50  B.  173. 

What  ballots  counted.  See  Jack- 
son v.  Washington,  3  N.  P.  (N.  S.) 
453. 

(2)  Municipality  prohibiting 
sale,  effect  on  Dow  tax. — Where  in- 
toxicating liquors  were  sold  in  vio- 
lation of  a  municipal  ordinance, 
passed  under  §  11  of  the  Dow  law, 
it  was  held  that  the  tax  authorized 
by  that  law  could,  nevertheless,  be 
collected.  Conwell  v.  Sears,  65  O. 
S.  49. 

Corporation  not  indictable  for 
unlawful  sale.  Ebbert  Brew.  Co.  v. 
State,  25  C.  C.  601. 

Court, — Mayor  has  final  juris- 
diction to  try  one  accused  under  the 
Beal  Law,  whether  trial  is  for  first 
or  second  offense.  Kappes  v.  State, 
25  C.  C.  723;  Wells  v.  State,  14 
Dec.  196;  1  N.  P.  (N.  S.)  309;  Dom- 
inick  v.  State,  27  C.  C.  305;  6  C.  C. 
(N.  S.)   192. 

Jury, — Offense  may  be  tried  by 
a  jury  of  the  county,  and  it  is  not 
necessary  that  jurors  should  be  se- 
lected from  municipality  alone  in 
which  violation  of  the  statute  oc- 
curred. Lloyd  v.  Dollisin,  23  C.  C. 
571;  3  C.  C.  (N.  S.)  328  (aff'd,  68 
O.  S.  688). 

Trial  may  be  had  without  a  jury, 
where  the  penalty  is  a  fine  only. 
Wells  v.  State,  1  N.  P.  (N.  S.)  309; 
Harlow  v.  State,  1  N.  P.  (N.  S.) 
323;  14  Dec.  196;  Kubach  v.  State, 
2  C.  C.  (N.  S.)  133;  25  C.  C.  488; 
Kappes  v.  State,  25  C.  C.  723. 

Imprisonment  imposed  to  enforce 
payment  of  fine  is  not  part  of  pen- 
alty, and  jury  trial  is  not  necessary 
where  this  is  the  case.  Schlagel  v. 
State,  16  Dec.  295;  3  N.  P.  (N.  S.) 
429   (aff'd  Cir.  Ct.  without  rep.). 

Sufficiency  of  affidavit,  etc. — 
In  prosecutions  founded  on  affidavit, 
information  or  indictment  for  sell- 
ing intoxicating  liquors  to  be  used 
as  a  beverage,  in  violation  of 
§§  4364-206  and  4364-20c,  it  is  nec- 
essary to  allege  in  the  affidavit,  in- 
formation or  indictment,  the  name 
of  the  purchaser  of  such  liquors,  or 
that  his  name  is  to  the  affiant,  in- 


formant, or  grand  jury  unknown. 
State  v.  Ridgway,  73  O.  S.  31;  see 
also  Stewart  v.  State,  25  C.  C.  438; 

2  G.  C.  (N.  S.)  290.  But  see  Dal- 
rvmple  v.  State,  26  C.  C.  562;  5  C. 
C.   (N.  S.)    185. 

Where  the  affidavit  does  not  show 
that  the  offense  was  a  second  or 
third  offense,  it  will  be  presumed 
to  be  a  first  offense.  Harlow  v. 
State,  1  N.  P.    (N.  S.)    323. 

An  affidavit  must  show  former 
conviction  to  charge  second  offense. 
Kubach  v.  State,  2  C.  C.  (N.  S.) 
133;   25  C.  C.  488. 

Where  affidavit  alleges  sale  and 
keeping  a  place  where  sale  is  made, 
state  is  not  bound  to  elect  one  or  the 
other  charge,  since  keeping  a  place 
where  sale  is  made  involves  sale. 
lb.;  Kappes  v.  State,  25  C.  C.  723; 
4  C.  C.  (N.  S.)  14;  but  see  Domi- 
nick  v.  State,  27  C.  C.  305;  6  C.  C. 
(N.  S.)    192. 

Where  one  count  cnarges  defend- 
ant with  keeping  a  place  where  in- 
toxicating liquors  are  sold  in  viola- 
tion of  §  4364-206  and  another  count 
charges  the  same  in  violation  of 
§  6942,  each  count  covering  the  same 
period  of  time  and  the  defendant 
kept  but  one  place,  there  is  but  one 
offense.  Weaver  v.  State,  74  O.  S. 
(51  B.  77). 

As  to  necessity  of  negative  aver- 
ment that  defendant  does  not  come 
within  exception  named  in  statute, 
see  Schlagel  v.  State,   16  Dec.  295; 

3  N.  P.  (N.  S.)  429  (aff'd  Cir.  Ct.) 
Affidavit  is  not  demurrable  which 

alleges  the  acts  complained  of  to  be 
then  and  there  prohibited  and  un- 
lawful.    Kappes  v.  State,  supra. 

New  trial  and  bill  of  excep- 
tions.— See  notes  under  §  1752  R. 
S.,  p.  543,  and  Harlow  v.  State,  1 
N.  P.  (N.  S.)  323,  as  modified,  1 
O.  L.  R.  751. 

Fine  provided  by  Beal  Law  is 
not  within  constitutional  inhibition, 
as  excessive.  Wells  v.  State,  1  N. 
P.  (N.  S.)   309;  14  Dec.  196. 

Pine  of  $100.00  on  each  of  three 
counts  of  an  affidavit  is  excessive 
for  first  offense.  Dalrymple  v. 
State,  26  C.  C.  562;  5  C.  C.  (N.  S.) 
185;  Carey  v.  State,  70  O.  S.  121. 


Sec.  4364r— 20c  R.  S.  [Meaning  of  phrase  "intoxicating 
liquors";  regular  druggists.]  The  phrase  "intoxicating  liq- 
uors" as  used  in  this  act  shall  be  construed  to  mean  any  dis- 


807  THE    OHIO    MUNICIPAL    CODE. 

tilled,  malt,  vinous  or  any  other  intoxicating  liquors ;  but  noth- 
ing in  this  act  shall  be  construed  to  prevent  the  selling  of  intoxi- 
cating liquors  at  retail  by  a  regular  druggist  for  exclusively 
known  medicinal,  pharmaceutical,  scientific,  mechanical  or  sac- 
ramental purposes;  and  when  sold  for  medicinal  purposes  it 
shall  be  sold  only  in  good  faith  upon  written  prescription  issued, 
signed  and  dated  in  good  faith  by  a  reputable  physician  in  active 
practice  and  the  prescription  used  but  once.  The  words  "  giv- 
ing away  "  where  they  occur  in  this  act  shall  not  apply  to  the 
giving  away  of  intoxicating  liquors  by  a  person  in  his  private 
dwelling,  unless  such  private  dwelling  is  a  place  of  public  resort. 

Sec.  4364 — 20d  R.  S.  [Rebate  of  Dow  tax  when  sale  discon- 
tinued.] When  any  person,  company  or  corporation  has  dis- 
continued such  traffic  in  accordance  with  the  provisions  of  this 
act,  within  the  time  specified  by  section  4364-20a  of  this  act, 
has  paid  or  is  charged  upon  the  tax  duplicate  with  an  assessment 
upon  such  traffic,  the  county  auditor,  upon  being  satisfied  of 
such  fact,  shall  issue  to  such  person,  company  or  corporation, 
a  refunding  order  of  an  amount  proportionate  to  the  unexpired 
time  for  which  said  assessment  has  been  paid.  [1902,  April  3 : 
95  v.  87.] 

Sec.  4364 — 20e  R.  S.  [What  constitutes  forty  per  cent,  of  the 
qualified  electors;  sufficiency  of  indictments  under  this  act.] 
The  petition  for  an  election  provided  for  in  section  4364-20a 
of  this  act  shall  be  deemed  sufficient  and  the  council  shall  order 
such  an  election  when  the  petition  is  signed  by  as  many  quali- 
fied electors  as  shall  equal  in  number  forty  per  cent,  of  the  num- 
ber of  votes  cast  in  said  municipal  corporation  at  the  last  pre- 
ceding general  election  in  municipalities  which  are  divided  into 
wards;  and  in  all  other  municipalities,  forty  per  cent,  of  the 
qualified  electors  at  the  last  preceding  municipal  election,  and 
in  indictments,  affidavits,  or  informations  for  violation  of  this 
act  it  shall  not  be  necessary  to  set  forth  the  facts  showing  that 
the  required  number  of  electors  in  the  municipal  corporation 
petitioned  for  an  election,  that  the  election  was  held,  or  that 
the  majority  voted  in  favor  of  prohibiting  the  sale  as  herein 
provided.  But  it  shall  be  sufficient  to  state  that  the  act  com- 
plained of  was  then  and  there  prohibited  and  unlawful. 

Sec.  4364 — 20f  R.  S.  [Entry  and  record  of  result  of  election 
required  by  Sec.  4364 — 20a.]  The  following  shall  be  deemed 
a  sufficient  entry  and  record  of  the  result  of  an  election  held 
under  the  provisions  of  this  act  as  required  by  sections  4364-20a 
and  4364-206 : 

The  State  of  Ohio,  County  of ,  municipal  cor- 
poration of 


INTOXICATING    LIQUOBS.  808 

The  special  election  held  on  the day  of 

,  A.  D., ,  within  and  for  the  (municipal 

corporation  of )   under  the  local  option  law  re- 
sulted as  follows : 

Whole  number  of  votes  "  for  the  sale  of  intoxicating  liquors 
as  a  beverage  " 

Whole  number   of  votes   "  against  the   sale   of   intoxicating 

liquors  as  a  beverage  " 

Clerk  of 

Sec.  4364 — 20gR.  S.  [Disposition  of  fines.]  Money  received 
from  fines  and  forfeited  bonds  collected  under  the  provisions  of 
this  act  shall  be  paid  into  the  treasury  of  the  municipal  cor- 
poration wherein  said  fine  was  imposed  or  bond  forfeited,  and 
shall  be  applied  to  such  fund  or  funds  as  the  council  of  the  said 
corporation  may  direct. 

Sec.  4364 — 20h  R.  S.  [Another  election  may  be  ordered ; 
when.]  At  any  time  after  two  years  from  the  date  of  an  elec- 
tion held  under  the  provisions  of  section  43  64-2 0a  of  this  act 
another  election  may  be  petitioned  for  and  shall  be  ordered  as 
provided  for  in  section  4364-20a. 

Sec.  4364 — 20i  R.  S.  [Contest  of  election  in  probate  court.] 
Any  person  being  a  qualified  elector  of  any  municipal  corpora- 
tion wherein  an  election  shall  have  been  held  as  provided  for  in 
this  act  may  contest  the  validity  of  such  election  by  filing  a 
petition  duly  verified  with  the  probate  court  of  the  county  in 
which  such  municipal  corporation  is  situated,  within  ten  days 
after  the  election,  setting  forth  the  grounds  for  contest. 

[Mayor  shall  be  summoned.]  The  probate  judge,  upon  the 
filing  of  such  petition,  shall  forthwith  issue  a  summons,  ad- 
dressed to  the  mayor  of  such  municipal  corporation,  notifying 
him  of  the  filing  of  such  petition  and  directing  him  to  appear 
in  said  court  on  behalf  of  said  municipal  corporation,  at  a  time 
named  in  the  summons,  which  time  shall  be  not  more  than 
twenty  days  after  the  election  nor  less  than  five  days  after  the 
filing  of  such  petition. 

[Method  of  procedure.]  The  probate  judge  shall  have  final  ju- 
risdiction to  hear  and  determine  the  merits  of  the  proceedings, 
and  in  other  respects  in  the  procedure  of  the  hearing  he  shall 
be  governed  by  the  law  providing  for  the  contesting  of  an 
election  of  a  justice  of  the  peace  so  far  as  such  law  is  applicable. 
The  probate  court  shall  require  the  person  or  persons  contesting 
the  election  to  furnish  sufficient  security  for  costs  before  said 
petition  is  filed.1      [April  3,  95  v.  87.] 


809  THE    OHIO    MUNICIPAL    CODE. 

(1)   Scope      of      hearing. —  The  But  see  Rost  v.  Glenville,  1  N.  P. 

probate   judge  is  limited  to  an  in-  (N.-S.)  65. 

vestigation  of  the  regularity  of  the  Remedy    exclusive. —  Method   of 

election  and  conformity  to  the  stat-  contesting  election  here  provided  is 

ute,  and  has  no  jurisdiction  to  pass  exclusive    and    question    cannot    be 

upon    the   validity    of    the    statute.  raised    by    defendant    in    criminal 

Wells  v.  State,  1  N.  P.  (N.  S.)  309.  prosecution.    Fike  v.  State,  25  C.  C. 

554;  4  C.  C.   (N.  S.)  81. 

[Sec.  2.]  [Repeals  and  saving  clause  for  ordinances.]  That  sec- 
tion 4364-20  of  the  Revised  Statutes  of  Ohio  be  and  the  same  is 
hereby  repealed,  but  an  ordinance  passed  by  a  municipal  cor- 
poration  under  the  authority  given  in  said  section  prohibiting 
places  where  intoxicating  liquors  are  sold  at  retail  shall  remain 
in  full  force  and  effect  until  thirty  days  after  an  election  has 
been  held  in  accordance  with  the  provisions  of  section  4364-20& 
of  this  act.  An  ordinance  passed  by  a  municipal  corporation 
under  the  authority  given  in  said  section  regulating  places 
where  intoxicating  liquors  are  sold  at  retail,  shall  remain  in 
full  force  and  effect  until  said  ordinance  is  repealed  or  amended 
under  the  authority  granted  in  section  4364-20  of  this  act. 
[1902,  April  3,  95  v.  87.] 

3.    RESIDENCE  DISTRICT  OPTION  LAW. 

An  act  to  further  provide  against  the  evils  resulting  from  the 
traffic  in  intoxicating  liquors  by  providing  for  local  option  in 
residence  districts  of  municipal  corporations.1 

[Sec.  1.]  [Petition  to  prohibit  sale  of  intoxicating  liquor  in 
residence  district;  filing  and  examination  of.]  Whenever  a 
majority  of  the  qualified  electors  of  any  residence  district  of 
any  municipal  corporation  sign  a  petition  in  favor  of  prohibit- 
ing the  sale  of  intoxicating  liquors  as  a  beverage  in  such  resi- 
dence district  and  file  the  petition  with  the  mayor  of  the  mu- 
nicipal corporation  or  with  any  judge  of  the  court  of  common 
pleas  of  the  county  in  which  such  municipal  corporation  is  sit- 
uated, the  mayor  or  judge  shall  examine  the  petition  at  a  pub- 
lic hearing  and  decide  upon  the  sufficiency  of  the  petition  and 
cause  a  copy  of  his  decision  to  be  filed  with  the  clerk  of  the 
municipal  corporation  or  council.1 

[Record  of  decision  of  mayor  or  judge;  its  value  as  evi- 
dence.] The  decision  of  the  mayor  or  judge,  as  certified  to 
the  clerk  of  the  municipal  corporation  or  council  and  recorded 
by  him  in  the  records  of  the  council  of  the  corporation,  or  a 
certified  copy  thereof,  provided  it  shows  that  a  majority  of 
the  voters  of  such  residence  district  were  in  favor  of  prohibit- 
ing the  sale  of  intoxicating  liquors  as  a  beverage,  shall  be  prima 


INTOXICATING  LIQUORS.  809& 

facie  evidence  that  the  selling,  furnishing  or  giving  away  of 
intoxicating  liquors  as  a  beverage  or  the  keeping  of  a  place 
where  such  liquors  are  sold,  kept  for  sale,  furnished  or  given 
away,  if  such  selling,  furnishing  or  giving  away  or  keeping  of 
such  place  occurred  thirty  days  after  the  finding  by  said  mayor 
or  judge,  was  then  and  there  prohibited  and  unlawful.  [1906, 
April  4,  98  v.  68;  97  v.  87,  §1.] 

(1)  Validity.— The  former  Bran-  for  Election,  14  Dec.  561;  2  N.  P. 

nock  Law  was   held  constitutional.  (N.  S.)  245 ;  In  re  Petition  for  Elec- 

Columbus  v.  Jeffrey,   14  Dec.  609 ;  tion  in  Toledo,  14  Dec.  698 ;  2  N.  P. 

2  N.  P.  (N.  S.)  85;  4  C.  C.  (N.  S.)  (N.   S.)    469;    Jeffrey  v.   State,   26 

494;  Ely  v.  Willard,  15  Dec.  318.  C.  C.  591;  4  C.  C.   (N.  S.)   494;  In 

Character  of  petition,  under  re  Petition  of  Ammer,  3  N.  P.  (N. 
former  BrannocK  law,  as  a  public  S.)  329;  Fulton  v.  Columbus,  16 
document,  see  Krickenberger  v.  Wil-  Dec.  129;  3  N.  P.  (N.  S.)  358;  Co- 
son,  15  Dec.  779.  lumbus  v.  Cole,  16  Dec.  212;   2  N. 

For  construction  of  provisions  re-  P.    (N.  S.)   563;  In  re  Petition  for 

lating    to    election    under    former  Election  in  Dayton,  2  N.  P.  (N.  S.) 

Brannock  Law,  see  In  re  Petition  245. 

[Sec.  2.]  [Petition  against  prohibition  of  sale  of  intoxicating 
liquor  in  residence  district;  filing  and  examination  of.]  When- 
ever a  majority  of  the  qualified  electors  of  any  residence  dis- 
trict of  any  municipal  corporation  in  which  the  sale  of  intoxi- 
cating liquors  as  a  beverage  has  been  prohibited  under  the  pro- 
visions of  section  one  of  this  act,  shall  sign  a  petition  against 
prohibiting  the  sale  of  intoxicating  liquors  as  a  beverage  in 
the  same  residence  district  and  file  the  petition  with  the  mayor 
of  the  municipal  corporation  or  with  any  judge  of  the  court 
of  common  pleas  in  the  county,  the  mayor  or  judge  shall  ex- 
amine the  petition  at  a  public  hearing  and  decide  upon  the 
sufficiency  of  the  petition  and  cause  a  copy  of  his  decision  to 
be  filed  with  the  clerk  of  the  municipal  corporation  or  council. 

[Record  of  decision  of  mayor  or  judge;  its  value  as  evi- 
dence.] The  result  of  such  examination  and  the  finding  duly 
certified  by  the  judge  or  mayor  and  recorded  by  the  clerk  of 
the  municipal  corporation  or  council  in  the  records  of  the  pro- 
ceedings of  the  council  of  the  corporation,  provided  that  it 
shows  that  a  majority  of  the  voters  of  the  residence  district 
are  opposed  to  prohibiting  the  sale  of  intoxicating  liquors  as 
a  beverage,  shall  be  prima  facie  evidence  that  the  sale  of  in- 
toxicating liquors  as  a  beverage  in  the  residence  district  is  not 
then  and  there  prohibited. 

[When  such  petition  may  be  filed.]  The  petition  provided 
for  in  this  section  shall  not  be  filed  until  after  two  years  or 
more  shall  have  elapsed  after  the  filing  of  the  petition  provided 
for  in  section  one  of  this  act.  Nothing  in  this  act  shall  be  con- 
strued to  affect  or  repeal  any  other  law  which  prohibits  the 
selling,  furnishing  or  giving  away  of  intoxicating  liquor  as  a 


8096  THE  OHIO    MUNICIPAL    CODE. 

beverage,  or  the  keeping  of  a  place  where  intoxicating  liquor 
is  sold,  furnished  or  given  away  as  a  beverage  which  is  in 
force  and  effect  throughout  the  municipal  corporation.1  [1906, 
April  4,  98  v.  68;  97  v.  91,  §9.] 

(1)  Construction  of  former  sec-  v.  Jeffrey,  14  Dec.  600;  2  N.  P.  (N. 
tion  of  Brannock.Law,  see  Columbus       S.)  85;  4  C.  C.  (N.  S.)  494. 

[Sec.  3.]  [Form  of  petition.]  A  petition  in  favor  of  prohibit- 
ing Ihe  sale  of  intoxicating  liquor  as  a  beverage  in  a  residence 
district  substantially  as  follows  shall  be  sufficient: 

"A  petition  to  prohibit  the  sale  of  intoxicating  liquors  as 
a  beverage  in  a  residence  district  of  the  municipal  corpora- 
tion of in  the  state  of  Ohio. 

To Date 

We,  the  undersigned,  respectfully  represent  that  we  are 
qualified  electors  in  the  following  residence  district,  to-wit: 


in  the  municipal  corporation  of ,   county  of 

, ,  state  of  Ohio,  and  that  we  are  in  favor  of 

prohibiting  the  sale  of  intoxicating  liquors  as  a  beverage  in 
said  residence  district/ ' 

A  petition  against  prohibiting  the  sale  of  intoxicating 
liquors  as  a  beverage  in  a  residence  district  substantially  as 
follows  will  be  sufficient: 

"A  petition  against  prohibiting  the  sale  of  intoxicating 
liquors  as  a  beverage  in  a  residence  district  of  the  municipal 

corporation  of of  the  state  of  Ohio. 

To Date 

We,  the  undersigned,  respectfully  represent  that  we  are 
qualified  electors  in  the  following  residence  district,  to-wit:    . 


in  the  municipal  corporation  of ,  in  the 

county  of ,  state  of  Ohio,  and  we  are 

opposed  to  prohibiting  the  sale  of  intoxicating  liquors  as  a 
beverage  in  said  residence  district.' ' 

Any  qualified  elector  may  authorize  any  person  to  sign  the 
petition  for  him  by  a  written  power  of  attorney.  No  elector 
will  be  allowed  to  add  his  name  to  the  petition  after  it  is  filed 
or  withdraw  his  own  or  authorized  signature  from  the  petition 
unless  he  can  prove  to  the  mayor  or  judge  that  it  was  secured 
through  fraud  or  misrepresentation.1  The  petition  provided 
for  in  this  act  shall  be  deemed  sufficient  when  it  is  signed  by 
as  many  qualified  electors  as  equal  a  majority  in  number  of 
the  votes  cast  at  the  last  regular  municipal  election  in  such 
residence  district,  but  must  in  order  to  be  valid,  be  filed  not 


INTOXICATING  LIQUORS.  809c 

later  than  three  months  after  the  signing  thereto  of  the  sig- 
nature first  in  order  of  time.2  The  expense  incurred  for  the 
publication  of  notices  for  the  hearing  on  the  petition  shall  be 
paid  out  of  the  general  revenue  fund  of  the  municipal  corpo- 
ration upon  the  order  of  the  mayor  or  judge  passing  upon  the 
petition.     [1906,  April  4,  98  v.  69;  97  v.  88,  §  3.] 

(1)  Withdrawal  of  names,  un-  (2)    Sufficiency  of  petition.— 

der  former  law,  see  In  re  Petition  What  names  counted,  under  former 

for  Election  in  Toledo,  14  Dec.  698 ;  Brannock  law,  see  In  re  Petition  for 

Columbus  v.  Glackin,  16  Dee.  229;  Election  in  Toledo,  14  Dec.  698;  In 

3  N.  P.    (N.  S.)    356;   Columbus  v.  re  Petition  of  Wightman,  3  N.  P. 

Cole,  2  N.  P.   (N.  S.)   563.  (N.  S.)    129;  50  B.  375. 

[Sec.  4.]  [Public  hearing  for  consideration  of  petition.]  When 
the  petition  referred  to  in  this  act  has  been  filed  with  the 
mayor  of  the  municipal  corporation  or  with  any  judge  of  the 
court  of  common  pleas  in  the  county,  the  mayor  or  judge  shall 
forthwith  cause  a  notice  of  the  hearing  on  such  petition  to  be 
published  in  two  newspapers  of  opposite  party  politics  pub- 
lished in  the  municipal  corporation,  if  there  be  two,  which  no- 
tice shall  set  forth  the  time  when  and  place  where  the  judge 
or  mayor  will  consider  the  petition,  at  which  time  he  shall 
hear  any  person  or  persons  who  are  electors  of  the  district  as 
to  the  question  of  the  petitioners  being  qualified  electors  in 
the  residence  district  or  any  other  matter  which  may  be 
brought  before  the  mayor  or  judge  for  determination  relating 
to  the  sufficiency  of  the  petition.  The  mayor  or  judge  shall 
decide  whether  the  petitioners  are  qualified  electors  in  the  resi- 
dence district  and  equal  in  number  a  majority  of  the  votes 
cast  in  the  residence  district  at  the  last  regular  municipal 
election  and  the  mayor  shall  make  a  record  of  his  findings  on 
his  docket  and  the  judge  shall  cause  the  same  to  be  recorded 
in  the  records  of  his  court,  and  thereupon  such  mayor  or  judge 
shall  cause  a  certified  copy  or  certificate  of  his  findings  to- 
gether with  the  original  petition  to  be  filed  with  the  clerk  of 
the  municipal  corporation  or  council  in  not  less  than  five  days 
after  such  finding  and  not  more  than  forty  days  from  the 
filing  of  the  petition  with  the  mayor  or  judge. 

[Certificate  of  finding  of  mayor  or  judge.]  The  following 
shall  be  a  sufficient  certificate  of  the  finding  of  the  mayor  or 
judge : 

"This  is  to  certify  that  I  have  examined  the  petition  which 
is  attached  hereto,  at  a  public  hearing  duly  announced  and 

hereby  find  that  on  the day  of A.  D. 

,  that  the  petition  meets  the  requirements  of  the  law 

and  that  a  majority  of  the  voters  of  the  following  residence 
district,  to-wit :  in  the  municipal  cor- 
poration of ,  county  of , 


S09d  THE   OHIO   MUNICIPAL    CODE. 

state  of  Ohio,  are  (in  favor  of  or  opposed  to)  prohibiting  the 
sale  of  intoxicating  liquors  as  a  beverage  in  said  residence 
district.  • ' 

Date 

Official  Signature. 

[Recording  of  certificate.]  The  clerk  of  the  municipal  cor- 
poration in  which  the  residence  district  is  situated  shall  forth- 
with upon  receiving  the  certificate  of  the  decision  of  the  suffi- 
ciency of  the  petition,  record  said  petition  with  the  said  cer- 
tificate of  such  decision  on  the  records  of  the  council  of  the 
municipal  corporation  and  shall  certify  to  the  correctness  of 
the  same  substantially  as  follows: 

"I  hereby  certify  that  the  foregoing  is  a  correct  copy  of 
the  petition  relating  to  the  sale  of  intoxicating  liquors  as  a 

beverage  in  the  following  residence  district,  to-wit : 

,  in  the  municipal  corporation  of 

and  the  finding  of  the  mayor  or  judge  on  the  petition." 

Official  Signature. 
[Bribery  and  intimidation;  penalty.]  Whoever  bribes,  boy- 
cotts or  intimidates  or  attempts  to  bribe,  boycott  or  intimi- 
date any  qualified  elector  to  keep  such  elector  from  signing 
the  petition  or  to  secure  the  signature  of  such  elector  to  the 
petitiion  provided  for  in  this  act ;  or  whoever  removes  any  per- 
son in  his  employ  or  threatens  to  remove  any  person  in  his 
employ  or  under  his  control,  either  directly  or  indirectly,  in 
order  to  secure  his  signature  to  such  petition,  or  to  keep  such 
person  from  signing  such  petition,  shall  be  guilty  of  a  misde- 
meanor and  shall  be  fined  not  less  than  $100,  nor  more  than 
$500,  and  the  signature  of  any  person  secured  to  such  petition 
by  bribery,  boycott  or  intimidation  shall  be  stricken  from 
such  petition.     [1906,  April  4,  98  v.  70;  97  v.  90,  §  5.] 

[Sec.  5.]  [When  the  sale  in  a  residence  district  shall  be  un- 
lawful; penalty  for  making  such  prohibited  sale.]  If  the 
findings  of  the  mayor  or  judge  or  a  copy  as  recorded  by  the 
clerk  of  the  municipal  corporation  or  council  on  the  records 
of  the  council  shows  that  a  majority  of  the  qualified  electors 
in  the  residence  district  named  are  in  favor  of  prohibiting  the 
sale  of  intoxicating  liquors  as  a  beverage,  then,  from  and  after 
thirty  days  from  the  date  of  such  finding  by  the  mayor  or 
judge  it  shall  be  unlawful  for  any  person,  personally  or  by 
agent  within  the  limits  of  such  residence  district  of  such  mu- 
nicipal corporation  to  sell,  furnish  or  give  away  any  intoxicat- 
ing liquors  to  be  used  as  a  beverage,  or  to  keep  a  place  where 
such  intoxicating  liquors  are  kept  for  sale,  given  away  or  fur- 
nished for  beverage  purposes,  and  whoever  from  and  after 
thirty  days  aforesaid  in  any  manner  whatever,  directly  or  in- 


INTOXICATING  LIQUORS.  .    809e 

directly,  sells,  furnishes  or  gives  away,  or  otherwise  disposes 
of  any  intoxicating  liquors  as  a  beverage,  or  keeps  or  uses  a 
place,  structure  or  vehicle,  whether  permanent  or  transient  for 
such  selling,  furnishing  or  giving  away  or  in  which  or  from 
which  intoxicating  liquors  are  sold,  furnished  or  given  away 
or  otherwise  disposed  of  as  aforesaid,  or  violates  any  of  the 
provisions  of  this  act  shall  be  guilty  of  a  misdemeanor  and 
shall  on  conviction  thereof  be  fined  not  more  than  two  hundred 
dollars  nor  less  than  fifty  dollars  for  the  first  offense;  and 
shall  for  any  subsequent  offense  be  fined  not  more  than  five 
hundred  dollars,  nor  less  than  two  hundred  dollars.  The  court 
on  any  conviction  for  a  second  or  subsequent  offense  shall  order 
the  place  where  such  liquor  is  sold,  furnished  or  given  away 
for  beverage  purposes  to  be  abated  as  a  nuisance  and  shall 
order  the  person  convicted  for  [such]  subsequent  offense  to 
give  bond  payable  to  the  state  of  Ohio  in  the  sum  of  one  thou- 
sand dollars  with  sureties  to  the  acceptance  of  the  court  that 
he  will  not  sell,  furnish  or  give  away  intoxicating  liquor  as  a 
beverage  in  such  residence  district  in  violation  of  law.  [1906, 
April  4,  98  v.  71;  97  v.  88,  §2.] 

[Sec.  6.]  [What  territory  controlled  by  result  of  action.] 
The  territory  enclosed  by  the  boundary  of  any  residence  dis- 
trict within  which  the  sale  of  intoxicating  liquors  has  been 
prohibited,  as  provided  for  in  section  one  of  this  act,  shall  be 
controlled  by  the  result  of  such  action,  and  the  law  shall  re- 
main in  full  force  and  effect  in  said  residence  district  for  two 
years  and  thereafter  until  another  petition  is  presented  under 
the  provisions  of  section  two  of  this  act  in  said  residence  dis- 
trict; and  after  a  petition  against  prohibiting  the  sale  of  in- 
toxicating liquors  has  been  presented  and  held  sufficient  by 
the  judge  or  mayor,  another  petition  can  not  be  presented  for 
two  years  thereafter. 

[Sec.  7.]  [Meaning-  of  phrase  "intoxicating  liquor";  regular 
druggists.]  The  phrase  "intoxicating  liquor' '  as  used  in  this 
act  shall  be  construed  to  mean  any  distilled,  malt,  vinous  or 
any  intoxicating  liquor,  by  whatever  name  the  same  may  be 
known,  but  nothing  in  this  act  shall  be  construed  to  prevent 
the  selling  of  intoxicating  liquors  at  retail  by  a  regular  drug- 
gist for  exclusively  known  medicinal,  mechanical,  pharmaceu- 
tical, scientific  or  sacramental  purposes ;  and  when  sold  for  me- 
dicinal purposes  shall  be  sold  only  in  good  faith  upon  a  written 
prescription  issued,  signed  and  dated  in  good  faith  by  a  reputa- 
ble physician  in  active  practice  and  the  prescription  used  but 
once.  Such  prescription  shall  contain  the  name  of  the  party 
for  whom  the  liquor  is  prescribed,  and  direction  for  its  use.  The 
words  "giving  away"  where  they  occur  in  this  act  shall  not 


809/  THE    OHIO    MUNICIPAL    CODE. 

apply  to  the  giving  away  of  intoxicating  liquor  by  any  person 
in  his  private  dwelling  unless  such  private  dwelling  is  a  place 
of  public  resort. 

[Manufacturer  may  sell  at  wholesale  to  retail  dealers,] 
And  nothing  contained  in  any  of  the  sections  of  this  act  shall 
in  any  manner  affect  the  right  of  any  manufacturer  of  intoxi- 
cating liquors  from  the  raw  material,  to  sell,  deliver  and  fur- 
nish his  product  in  wholesale  quantities  to  bona  fide  retail, 
dealers  trafficking  in  intoxicating  liquors  or  in  wholesale 
quantities  to  any  party  or  parties  residing  outside  the  limits  of 
said  district,  nor  of  any  bona  fide  wholesale  dealer  in  said 
district  to  sell  or  deliver  intoxicating  liquors  in  wholesale 
quantities  to  customers  of  such  district,  or  to  bona  fide  resi- 
dences in  such  district. 

[Meaning  of  term  "qualified  elector."]  The  original  peti- 
tions and  findings  of  the  mayor  or  judge  shall  be  filed  with 
the  clerk  of  the  municipal  corporation  or  council  as  a  public 
document.  The  term  "qualified  elector"  as  used  in  this  act 
means  registered  male  voters  in  all  municipal  corporations 
which  have  registration  and  all  other  male  voters  entitled  to 
register  who  have  been  bona  fide  residents  of  the  district  for 
four  months  before  such  petition  is  filed  with  the  mayor  or 
judge.  In  municipalities  which  do  not  have  registration,  such 
male  voter  or  male  qualified  elector  must  be  a  bona  fide  resident 
of  the  district  for  four  months  before  such  petition  is  filed  with 
the  mayor  or  judge. 

[Meaning  of  phrase  "residence  district,"]1  The  phrase 
"residence  district"  as  used  in  this  act,  shall  be  construed  to 
mean  any  clearly  described,  contiguous,  compact  section  or 
territory  in  a  municipal  corporation  bounded  by  street,  cor- 
poration, or  other  well  recognized  lines  or  boundaries  and  con- 
taining not  fewer  than  three  hundred  qualified  electors,  nor 
more  than  five  thousand  qualified  electors;  and  such  district 
shall  not  contain  any  block  in  which  one-half  or  more  of  the 
foot  frontage  of  such  block  is  occupied  by  buildings  and  prem- 
ises actually  devoted  to  commercial,  manufacturing,  mercan- 
tile or  other  business  purposes  not  including  saloons ;  and  fur- 
ther, such  district  shall  not  contain  the  property  or  premises 
abutting  on  a  section  of  a  street  lying  between  two  consecutive 
cross  or  intersecting  streets,  from  street  to  street,  or  extend- 
ing for  a  distance  of  not  less  than  five  hundred  feet  along 
such  street  on  which  said  premises  abut,  whenever  sixty-five 
per  cent,  of  the  foot  frontage  of  such  abutting  property  on 
each  side  of  such  street  is  occupied  for  and  devoted  to  manu- 
facturing, mercantile  or  other  business  purposes,  not  including 
saloons,  if  such  section  of  such  street  is  in  the  central  or  main 
business  part  of  the  municipal  corporation  ■  provided,  however, 
that  in  determining  the  total  foot  frontage  referred  to  herein, 


INTOXICATING  LIQUORS.  809# 

property  occupied  by  saloons  shall  not  be  counted  as  either 
business  or  residence  property.  Whenever  a  section  of  a  street 
is  made  exempt  from  the  provisions  of  this  act,  lot  lines  may 
be  used  in  outlining  the  boundary  of  the  district  to  exempt 
the  property  facing  on  such  section  of  such  street. 

Parks  in  residence  districts  and  properly  devoted  to  educa- 
tional, religious  or  charitable  uses,  shall  for  the  purpose  of 
this  act,  be  held  to  be  occupied  for  residence  purposes;  while 
public  property  devoted  to  other  than  the  above  specified  uses, 
shall,  for  like  purposes,  be  deemed  to  be  occupied  for  business 
purposes.  Buildings  which  have  more  than  one-half  of  the 
floor  space  of  the  buildings  used  for  residence  purposes  shall 
be  counted  as  residence  property.  When  but  one  side  of  said 
portion  of  said  street  is  adaptable  for  residence  or  business 
purposes,  then  such  side  of  such  portion  of  such  street  shall 
determine  whether  the  property  abutting  on  both  sides  of  such 
street  be  counted  as  business  or  residence  property.  The  max- 
imum length  of  a  residence  district  shall  not  exceed  three  times 
its  maximum  width  unless  the  boundaries  of  the  municipal 
corporation  or  exempted  territory  prevents  the  district  from 
containing  the  requisite  number  of  voters.  In  such  case  the 
boundaries  shall  follow  the  proportionate  length  and  breadth 
provided  herein  as  nearly  as  possible. 

[Meaning  of  terms  "block"  and  "saloon."]  1  The  term 
"block"  shall  be  construed  to  mean  the  territory  bounded  by 
four  well  recognized  adjacent  streets  and  not  alleys.  The 
term  "saloon"  shall  mean  any  place  where  intoxicating  liquor 
is  sold  or  trafficked  in  as  a  beverage.  [1906,  April  4,  98  v.  72; 
97  v.  89,  §  4.] 

(1)  Definition  of  terms— See  Toledo,  14  Dee.  698;  2  N.  P.  (N.  S.) 
for  definition  of  terms  under  former  409;  In  re  Petition  for  Election,  14 
law,  In  re  Petition  for  Election  in       Dec.  561;  2  N.  P.   (N.  S.)   245. 

[Sec.  8.]  [Sufficiency  of  indictments  under  this  act.]  In  in- 
dictments, informations  or  affidavits  for  violations  of  this  act, 
it  shall  not  be  necessary  to  set  forth  the  facts  showing  that  the 
required  number  of  electors  in  any  residence  district  of  a  mu- 
nicipal corporation  signed  a  petition  in  favor  of  prohibiting  the 
sale  of  intoxicating  liquors  or  that  there  was  a  public  hearing 
or  that  any  finding  was  made  upon  such  petition  or  that  a  cer- 
tificate of  such  findings  with  the  petition  was  transmitted  to  the 
clerk  or  a  record  made  of  it  by  the  clerk,  as  hereinbefore  pro- 
vided; but,  it  shall  be  sufficient  to  state  that  the  act  com- 
plained of  was  then  and  there  in  the  residence  district  named 
prohibited  and  unlawful.  [1906,  April  4,  98  v.  73;  97  v. 
91,  §  8.] 

[Sec.  9.]  [Rebate  of  Dow  tax  when  sale  discontinues.]  When 
any  person,  company  or  corporation  engaged  in  the  traffic  has 


809/&  THE   OHIO    MUNICIPAL    CODE. 

discontinued  such  traffic  within  the  time  specified  by  section 
one  of  this  act  and  has  paid  or  is  charged  upon  the  tax  dupli- 
cate with  an  assessment  upon  such  traffic,  the  county  auditor, 
upon  being  satisfied  of  such  facts  shall  issue  to  such  person, 
company  or  corporation  a  refunding  order  of  an  amount  pro- 
portionate to  the  unexpired  time  for  which  said  assessment  has 
been  paid  or  is  charged.  [1906,  April  4,  98  v.  73;  97  v.  91, 
§7.] 

[Sec.  10.]  [Disposition  of  fines  collected.]  Money  received 
from  fines  and  forfeited  bonds  collected  under  the  provisions 
of  this  act,  shall  be  paid  into  the  treasury  of  the  municipal 
corporation  wherein  such  fine  was  imposed  or  bond  forfeited, 
and  shall  be  applied  to  such  purposes  as  the  council  thereof 
may  direct.     [1906,  April  4,  98  v.  74;  97  v.  91,  §  10.] 

[Sec.  11J  [Former  residence  district  local  option  law.]  In 
all  residence  districts  where  the  sale  of  intoxicating  liquor  has 
been  prohibited  under  the  provisions  of  the  act  entitled  "An 
act  further  to  provide  against  the  evils  resulting  from  the  traf- 
fic in  intoxicating  liquors  by  providing  for  local  option  in 
residence  districts  of  municipal  corporations,"  passed  April 
18,  1904  (97  O.  L.  87),  such  law  thus  prohibiting  the  sale  of 
intoxicating  liquors  as  a  beverage  shall  remain  in  full  force 
and  effect  in  such  residence  district  for  two  years  from  the 
date  of  the  local  option  election  held  and  thereafter  until  a 
petition  has  been  presented  to  the  mayor  or  judge  as  provided 
for  in  section  one  or  two  of  this  act.     [1906,  April  4,  98  v.  74.] 

[Sec.  12.]  [Proceedings  in  error.]  Any  person  being  a  quali- 
fied elector  of  any  residence  district  of  any  municipal  corpo- 
ration wherein  a  petition  shall  have  been  presented  and  held 
sufficient  by  a  mayor  or  judge  as  provided  for  in  this  act  may 
prosecute  error  from  such  finding  by  first  filing  a  motion  for 
leave  to  file  a  petition  in  error  with  the  circuit  court  of  the 
county  in  which  such  residence  district  is  situated.  The  mo- 
tion shall  not  be  granted  unless  for  good  cause  shown.  If 
such  motion  is  granted,  a  petition  in  error  shall  be  filed  within 
fifteen  days  after  the  finding  or  decision  of  the  mayor  or  judge 
setting  forth  the  errors  complained  of.  The  circuit  court 
upon  the  filing  of  such  petition  shall  forthwith  issue  a  sum- 
mons1 addressed  to  the  mayor  of  such  municipal  corporation 
notifying  him  of  the  filing  of  the  petition  in  error  and  direct- 
ing him  to  appear  in  said  court  on  behalf  of  said  residence 
district  at  the  time  mentioned  in  the  summons  which  time  shall 
not  be  more  than  thirty  days  after  the  finding  or  decision  of 
the  mayor  or  judge  nor  less  than  ten  days  after  the  filing  of 
such  petition.  The  circuit  court  shall  have  final  jurisdiction 
to  hear  and  determine  the  merits  of  the  proceedings  and  there 
shall  be  no  appeal  or  error  proceedings  allowed  from  such 
decision.  The  circuit  court  shall  require  the  person  or  per- 
sons prosecuting  error  from  the  finding  or  decision  of  the 


INTOXICATING   LIQUORS.  809* 

mayor  or  judge  to  furnish  security  for  costs  before  such 
petition  is  filed.  Any  qualified  elector  in  such  residence 
district  may  appear  in  person  or  by  attorney  at  such  hearing 
before  the  circuit  court  or  on  the  motion  for  leave  to  file 
petition  in  error  in  defence  of  the  validity  of  the  proceedings 
before  the  mayor  or  judge  taking  action  upon  the  petition. 
[1906,  April  4,  98  v.  74.] 

(1)  Service  of  summons  under      Jn  re  Petition  of  Gorey,  2  N.  P.  (N. 
former  law,  see  Short  v.  Cincinnati,       S.)    389. 
3  N.  P.    (N.   S.)    117;    50  B.  288; 

[Sec.  13.]  [Repeals,  etc.]  That  the  act  entitled  ' 'An  act  fur- 
ther to  provide  against  the  evils  resulting  from  the  traffic  in 
intoxicating  liquors  by  providing  for  local  option  in  residence 
districts  of  municipal  corporations, "  passed  April  18,  1904,  and 
approved  April  19,  1904  (97  O.  L.,  p.  87),  be  and  the  same  is 
hereby  repealed  when  this  act  goes  into  effect.  [1906,  April 
4,  98  v.  74;  97  v.  87.] 

4.    DANCE  HALLS,  Etc. 

Sec.  6945a  R.  S.  [No  public  dance,  roller  skating  or  like  en- 
tertainment  shall   be    given   without   mayor's    permit.]     No 

public  dance,  roller  skating  or  like  entertainment  shall  be  per- 
mitted or  given  in  any  building,  hall,  room  or  rink  within  any 
city  or  village  within  this  state,  without  first  having  obtained 
a  permit  so  to  do  from  the  mayor  of  the  city  or  village  in 
which  said  dance,  roller  skating- or  like  entertainment  is  to  be 
held  or  given.     [1906,  April  4,  98  v.  61.] 

Sec.  6945b  R.  S.  [Sale  of  intoxicating  liquors  on  premises 
where  such  entertainment  is  being  given,  prohibited.]  No 
intoxicating  liquors  of  any  kind  shall  be  sold  or  served  on  the 
same  floor  or  floors  of  any  building,  hall,  room  or  rink  on  which 
such  public  dance,  roller  skating  or  like  entertainment  is  being 
held  or  given,  during  the  progress  of  such  entertainment,  or  in 
any  room  or  rooms  directly  connected  therewith  by  any  door 
or  stairway,  which  connects  such  hall,  room  or  rink  with  any 
room  or  place  on  the  same  floor  or  floors  wherein  intoxicating 
liquors  are  sold  or  kept  for  sale.     [1906,  April  4,  98  v.  62.] 

Sec.  6945c  R.  S.  [Police  shall  enforce  this  act;  notice  shall 
be  posted;  penalty.]  It  is  hereby  made  the  duty  of  the  mayor 
of  any  city  or  village  where  in  his  opinion  it  is  necessary  to 
detail  such  number  of  police  officers  as  may  be  required  to 
preserve  order  at  such  public  dance,  roller  skating  rink  or  other 
entertainment  and  enforce  the  provisions  of  this  act.  And  it  is 
hereby  made  the  duty  of  the  owner  or  lessor  of  any  building 
containing  any  dance  hall,  room  or  rink,  to  keep  posted  in  a 
conspicuous  place  in  such  hall,  room  or  rink,  a  copy  of  this  act. 

Whoever  violates  any  provision  of  this  act  shall  be  fined  in 
any  sum  not  exceeding  one  hundred  dollars  ($100.00),  nor  not 
less  than  fifteen  dollars  ($15.00)  or  be  imprisoned  not  more 
than  sixtv  days,  or  both.     [1906,  April  4,  98  v.  62.] 


810  THE    OHIO    MUNICIPAL    CODE. 


XXI 

LICENSES.1 

Sec.  4238 — 6  R.  S.  [Plumber's  license.]  §  1.  Any  person,  firm 
or  corporation  now,  or  that  may  hereafter  be  engaged  in,  or 
working  at  the  business  in  this  state  either  as  master  or  employ- 
ing plumber,  or  as  a  journeyman  plumber  shall  first  secure  a 
license  therefor,  in  accordance  with  the  provisions  of  this  act. 
[92  v.  263.] 

(1)  Licensing  power  of  coun- 
cil.—  See  §  2669  et  seq.,  re-enacted 
in  §  8  of  the  Code,  page  73  et  seq. 

i 

Sec.  4238 — 7  R.  S.     [Application  and  examination.]  §  2.     Any 

person  desiring  to  engage  in,  or  work  at,  the  business  of  plumb- 
ing, either  as  a  master  or  employing  plumber,  or  as  a  journeyman 
plumber,  shall  apply  to  the  president  of  the  board  of  health  or 
other  officer  having  jurisdiction  in  the  locality  where  he  intends 
to  engage  in,  work  at,  such  business,  and  shall  at  such  time 
and  place  as  may  be  designated  by  the  board  of  examiners 
hereinafter  provided  for,  to  whom  such  application  shall  be 
referred,  be  examined  as  to  his  qualifications  for  such  business. 
In  case  of  a  firm,  or  corporation,  the  examination  and  licensing 
of  any  one  member  of  such  firm,  or  the  manager  of  such  cor- 
poration, shall  satisfy  the  requirements  of  this  act.1  [92  v. 
263.] 

( 1 )     Validity. —  This    section    is  same  class,  pursuing  the  same  busi- 

unconstitutional  in  so  far  as  it  im-  ness  in  the  same  way.  State  v.  Gard- 

poses  the  burden  of  an  examination  ner,  58  0.  S.  599. 
on  some,  and  exempts  others  of  the 

Sec.  4238 — 8  R.  S.  [Examiners ;  appointment,  qualifications, 
etc.]  §  3.  There  shall  be  in  every  city  and  each  town  of  five 
(5)  thousand  inhabitants,  or  more,  and  in  each  town  having  a 
system  of  water  supply  or  sewerage,  a  board  of  examiners  consist- 
ing of  the  president  of  the  board  of  health  ;  and  the  inspector  of 


LICENSES.  811 

buildings  of  said  city  or  town  if  any  there  be  and  three  (3) 
members,  who  shall  be  practical  plumbers;  (two  shall  be 
master  plumbers,  one  shall  be  a  journeyman  plumber)  ;  the 
president  of  the  board  of  health  and  the  inspector  of  buildings 
shall  be  members  ex  officio  of  said  board  and  serve  without 
compensation;  provided,  that  in  localities  where  the  required 
number  of  plumbers  can  not  be  secured,  such  vacancies  may  be 
filled  by  the  appointment  of  reputable  physicians.  Said  mem- 
bers shall  be  appointed  by  the  board  of  health,  if  there  be  no 
board  of  health,  then  by  the  health-officer  of  said  city  or  town, 
within  three  (3)  months  after  the  passage  of  this  act,  for  the 
term  of  one  (1)  year,  said  appointment  to  date  from  the  first 
day  of  August  A.  D.  1896,  and  thereafter  annually,  and  said 
appointed  members  of  such  board  shall  serve  without  compen- 
sation ;  provided,  that  if  in  any  city  or  town  there  is  no  inspec- 
tor of  buildings,  said  board  of  health  shall  appoint  a  fourth 
member  of  said  board  of  examiners,  who  shall  be  a  practical 
plumber,  and  whose  term  of  office  shall  be  the  same  as  is  hereto- 
fore provided  for  said  three  (3)  members.      [92  v.  263.] 

Sec.  4238 — 9  It.  S.  [Organization  of  board;  time,  place  and 
duties.]  §  4.  Said  board  of  examiners  shall,  within  thirty  (30) 
days  after  the  appointment  of  said  members,  meet  and  organize 
by  the  selection  of  a  chairman,  and  then  shall  designate  the 
time  and  place  for  the  examination  of  all  applicants  desiring 
to  engage  in  or  at  the  business  of  plumbing  within  their  juris- 
diction. Said  board  shall  examine  said  applicants  as  to  their 
practical  knowledge  of  plumbing,  house-drainage  and  plumbing- 
ventilation,  and  if  satisfied  of  the  competency  of  the  applicant, 
shall  so  verify  to  the  board  of  health.  Such  board  shall  there- 
upon issue  a  license  to  such  applicant,  authorizing  him  to  en- 
gage in,  or  at,  the  business  of  plumbing,  either  as  a  master  or 
employing  plumber,  or  as  a  journeyman  plumber.  The  fee 
for  the  license  for  a  master  or  employing  plumber,  shall  be 
five  ($5)  dollars;  for  a  journeyman  plumber  shall  be  one  ($1) 
dollar.  Said  license  shall  be  valid  and  have  force  throughout 
the  state,  and  shall  be  renewed  annually  upon  the  payment  of  a 
fee  of  fifty  cents.  In  case  of  .a  removal  beyond  the  jurisdic- 
tion of  the  board  issuing  the  original  license,  it  may  be  renewed 
by  any  board  having  like  authority.      [92  v.  263.] 

Sec.  4238— -10  It.  S.  [Inspector  of  plumbing.]  §5.  The  board 
of  health  of  each  city  or  town  mentioned  in  section  (3)  [§(4238 
— 8)]  of  this  act,  shall  within  three  months  from  and  after 
the  passage  of  this  act,  appoint  one  or  more  inspectors  of  plumb- 
ing and  such  appointment  shall  be  subject  to  the  approval  of  the 


812  THE    OHIO    MUNICIPAL    CODE. 

council  of  such  city  or  town  (if  such,  appointment  has  not  al- 
ready been  made),  who  shall  be  practical  plumbers,  and  shall 
hold  office  until  removed  by  such  board  of  health  for  cause, 
which  must  be  shown.  The  compensation  of  such  inspectors 
shall  be  determined  by  the  said  board  of  health  and  be  paid 
from  the  treasury  of  their  respective  cities  or  towns.  Said  in- 
spector so  appointed  shall  inspect  all  plumbing  work  for  which 
permits  are  hereafter  granted,  within  their  respective  jurisdic- 
tion, in  process  of  construction,  alteration  or  repair,  and  shall 
report  to  said  board  of  health  all  violations  of  any  law,  ordi- 
nance or  by-law  relating  to  plumbing  work,  and  also'  perform 
such  other  appropriate  duties  as  may  be  required  by  said  board. 
[92  v.  263.] 

Sec.  4238 — 11  R.  S.  [Rules  governing  plumbing  and  sewer- 
age.] §  6.  The  board  of  health  of  each  city  or  town  of  five  (5) 
thousand  inhabitants  or  more  in  this  state,  and  every  town 
having  a  system  of  water  supply  or  sewerage,  shall  within  six 
(6)  months  from  the  passage  of  this  act,  prescribe  rules  and 
regulations  for  the  construction,  alteration  and  inspection  of 
plumbing  and  sewerage  placed  in,  or  in  connection  with  any 
buildings  in  such  city  or  town;  which  shall  be  approved  by 
ordinance  by  the  council,  of  such  city  or  town,  and  the  board 
of  health  shall  further  provide,  that  no  plumbing  work  shall  be 
done  except  in  the  case"  of  repairs  or  leaks,  without  a  permit 
being  first  issued  therefor  upon  such  terms  and  conditions  as 
such  board  of  health  of  said  city  or  town  shall  prescribe.  [92 
v.  263.] 

Sec.  4238—12  R.  S.  [Penalty.]  §  7.  Any  person  violating 
any  provision  of  this  act  shall  be  deemed  guilty  of  a  misdemean- 
or, and  shall  be  subject  to  a  fine  not  exceeding  fifty  ($50)  dol- 
lars, nor  less  than  five  ($5)  dollars  for  each  and  every  violation 
thereof.  The  license  of  any  master  or  journeyman  plumber 
may  at  any  time  be  revoked  for  incompetency,  dereliction  of 
duty  or  other  sufficient  causes  after  a  full  and  fair  hearing 
by  a  majority  of  the  examining  board,  but  an  appeal  may  be 
taken  from  said  examining  board  to  the  state  board  of  health, 
and  license  may  be  revoked  by  the  examining  board  provided 
for  in  section  three  (3)  [§(4238—8)]  of  this  act.  [92  v. 
263.] 

Sec.  4238— 13  R.  S.  [Disposition  of  money  derived  from  ex- 
aminations.] §  8.  All  money  derived  from  the  examination  of 
applicants  shall  go  to  the  board  of  health  at  the  place  where  the 
applicant  was  examined.      [92  v.  263.] 


LICENSES.  813 

Sec.  4fi38 — 23 E.  S.  [Explosives;  License;  how  granted.] 
§  3.  The  common  council  of  any  city  or  incorporated  village 
within  this  state,  or  the  trustees  of  any  township,  may,  by  a 
majority  vote  of  all  the  members  elected  thereto,  at  a  regular 
meeting,  upon  application  duly  made  under  the  provisions  of 
this  act,  grant  a  certificate  of  license  to  any  person,  firm  or  cor- 
poration, authorizing  the  same  to  manufacture  the  substance 
or  material  known  as  dynamite  or  other  nitro-explosive  com- 
pound, in  accordance  with  the  conditions  and  restrictions  here- 
inafter mentioned.      [82  v.  182.] 

Sec.  4386  It.  S.  [Who  may  carry  on  business  of  pawnbroker.] 
No  person  shall  carry  on  or  conduct  the  business  or  calling  of 
pawnbroker,  or  of  loaning  money  on  personal  property  without 
having  obtained  from  the  mayor  of  the  municipal  corporation 
in  which  it  is  proposed  to  carrv  on  such  business,  a  license  so 
to  do.      [(S.  &S.  821.)] 

Sec.  4387  U.S.  [Pawnbroker  defined.]  Whoever  loans  mon- 
ey on  deposit  or  pledges  of  personal  property,  or  who  purchases 
personal  property  or  choses  in  action,  on  condition  of  selling 
the  same  back  again  at  a  stipulated  price,  is  hereby  defined  and 
declared  to  be  a  pawnbroker. 

Sec.  4388  It.  S.  [To  whom  and  on  what  conditions  license  may 
be  issued.]  The  mayor  of  any  municipal  corporation  may 
grant  a  pawnbroker's  license  to  any  person  of  good  moral  char- 
acter who  may  apply  therefor,  when  the  applicant  pays  into 
the  treasury  of  the  corporation  a  sum  to  be  fixed  by  ordinance, 
not  to  exceed  two  hundred  dollars  per  annum,  and  executes 
a  bond,  with  surety,  to  the  satisfaction  of  the  mayor  to  the 
municipal  corporation,  in  the  sum  of  five  hundred  dollars,  that 
the  applicant  will  conform  to  the  requirements  of  the  law  and 
any  ordinance  of  the  corporation. 

Sec.  4389  It.  S.  [Record  to  be  kept,  and  what  entries  to  be 
made  therein.]  The  person  so  licensed  shall  keep  a  correct  list 
and  description,  in  a  book  for  that  purpose,  of  every  article 
pledged  or  deposited  with  him,  or  on  which  advances  of  money 
have  been  made,  or  which  may  be  purchased  by  him,  which  list 
and  description  shall  at  all  times  be  open  to  the  inspection  of 
the  chief  or  superintendent  of  police  of  the  corporation,  or  of 
a  police  officer  deputed  by  him,  or  by  the  mayor,  to  make  such 
inspection ;  and  he  shall,  at  all  times,  when  required  by  the 
police  officer  or  mayor  aforesaid,  produce,  and  show  any  article 
so  listed  and  described  which  may  be  in  his  possession ;  he  shall 
also  register  in  such  book  the  name  and  place  of  residence  of 
the  depositor,  and  time  whei:   the  deposit  was  made;  all  the 


814  THE    OHIO    MUNICIPAL    CODE. 

entries  shall  be  written  in  ink  in  the  English  language,  and  no 
entry  shall  be  erased,  obliterated,  or  defaced.      [(St  &  S.  821.)] 

Sec.  4390  R.  S.  [List  of  articles  pawned  to  be  daily  sent  to 
mayor.]  Every  person  so  licensed  shall  prepare  and  deliver  to 
the  mayor  every  day  before  the  hour  of  twelve  o'clock  m.  k 
legible  and  correct  copy  from  such  registry  of  the  description 
of  all  personal  property,  bonds,  notes,  or  other  securities  re- 
ceived on  deposit  or  purchase  during  the  preceding  day,  to- 
gether with  the  hour  at  which  the  article  was  received,  together 
with  a  description  of  the  person  by  whom  left  in  pledge,  or 
from  whom  the  same  were  purchased. 

Sec.  4391 R.  S.  [Pawnbroker  to  detain  article  twenty-four 
hours  thereafter.]  No  bond,  note,  security,  or  personal  prop- 
erty of  any  kind,  received  on  deposit,  purchased,  or  pledged  by 
any  such  pawnbroker  shall  be  sold  or  permitted  to  be  redeemed 
or  removed  from  his  place  of  business  of  such  pawnbroker  for 
the  space  of  twenty-four  hours  after  the  copy  and  statement 
provided  for  in  the  last  section  has  been  delivered. 

Sec.  4392  R.  S.  [Hours  for  doing  business.]  No  person  li- 
censed as  aforesaid  shall  receive  on  deposit,  or  purchase,  any 
personal  property,  bonds,  notes,  securities,  or  article,  property, 
or  thing,  as  such  pawnbroker,  before  the  hour  of  six  o'clock 
a.  m.,  nor  after  the  hour  of  eight  o'clock  p.  m.,  during  the 
months  of  January,  February,  March,  April,  October,  Novem- 
ber, and  December  of  each  year,  nor  before  the  hour  of  five  a. 
m.,  nor  after  the  hou"r  of  nine  p.  m.,  during  the  months  of  May, 
June,  July,  August,  and  September  of  each  year. 

Sec.  4393  R.  S.  [Articles  not  to  be  received  from  minor,  or 
intoxicated  or  suspected  person.]  No  person  licensed  as  afore- 
said shall  take  or  receive  in  pawn  or  pledge  for  money  loaned, 
or  shall  take,  receive,  or  purchase,  within  the  line  of  his  busi- 
ness as  a  pawnbroker,  any  property,  bonds,  notes,  securities, 
articles,  or  thing  whatsoever,  from  any  minor,  or  the  ownership 
of  which  is  in  or  which  is  claimed  by  any  minor,  or  which  may 
be  in  the  possession  or  under  the  control  of  any  minor,  or  a 
person  appearing  to  be  intoxicated,  a  person  known  to  be  a 
notorious  thief,  or  a  person  known  to  have  been  convicted  of 
larceny  or  burglary. 

Sec.  4394  R.  S.  [Not  to  carry  on  other  business  in  same  build- 
ing, nor  employ  minors.]  No  such  person  shall  carry  on  any 
other  business  or  vocation  directly  or  indirectly  in  the  same 
building  in  which  such  business  of  pawnbroking  is  carried  on, 


LICENSES.  815 

nor  employ  any  person  under  the  age  of  sixteen  to  take  pledges 
in  pawn. 

Sec.  4395  R.  S.  [When  mayor  shall  revoke  license.]  The 
mayor  shall,  upon  the  conviction  of  any  such  person  of  a  viola- 
tion of  any  of  the  provisions  of  this  chapter,  revoke  his  license. 

Sec.  4396  B.  S.  Penalty  for  violation  of  provisions  of  chapter.] 
A  person  convicted  of  a  violation  of  any  provisions  of  this  chap- 
ter, where  no  other  penalty  is  provided  for,  shall  be  fined  not 
less  than  ten  nor  more  than  two  hundred  dollars. 

Sec.  4398  R.  S.  [Proceedings  on  application  for  peddler's  li- 
cense ;  fees  to  be  paid.  ]  Any  person  shall  have  a  license  to  ped- 
dle in  this  state,  who  files  with  the  auditor  of  any  county,  under 
oath,  which  may  be  administered  by  the  auditor,  a  statement  or 
list  of  his  stock  in  trade,  in  conformity  with  the  law  with  re- 
spect to  statements  by  merchants,  and  pays  to  the  treasurer  of 
such  county  the  proportionate  amount  of  taxes  on  such  stock 
in  trade  in  conformity  with  such  law,  together  with  twelve 
dollars,  if  the  applicant  intends  to  travel  on  foot ;  twenty  dollars, 
if  on  horseback  or  in  a  one-horse  wagon,  or  other  vehicle; 
twenty-eight  dollars,  if  in  a  two-horse  wagon  or  other  vehicle, 
and  sixty  dollars,  if  in  a  boat  or  other  water  craft,  or  in  rail- 
road cars,  and  files  with  the  auditor  separate  receipts  of  the 
treasurer  therefor,  and  also  pays  to  the  auditor  fifty  cents  for 
granting  the  license;  which  sums,  except  taxes  and  auditor's 
fees,  shall  be  credited  to  the  "  state  common  school  fund,"  and 
it  shall  be  the  duty  of  each  and  every  county  treasurer,  with 
whom  any  money  may  be  deposited  in  conformity  with  this 
chapter,  to  account  to  the  auditor  of  state  for  such  sums  de- 
posited on  account  of  license,  and  upon  his  draft  pay  the  same 
into  the  state  treasury,  each  year  hereafter,  at  the  time  of 
making  his  semi-annual  August  settlement  with  the  auditor  of 
state,  and  the  same  shall  be  placed  to  the  credit  of  the  state 
common  school  fund ;  but  any  merchant  in  this  state,  who,  by 
himself  or  agent>  desires  such  license,  shall  not  be  required  to 
make  the  statement  herein  required,  if  the  subject  matter  there- 
of has  been  otherwise  listed  for  taxation.  [1882,  April  7:  79 
v.  96 ;  59  v.  67,  §  2 ;  (S.  &  S.  511 ;  S.  &  C.  907).] 

Sec.  4398a  R.  S.  [Fee  to  be  paid  by  honorably  discharged  sol- 
dier or  sailor  for  peddler's  license.]  Any  applicant  for  license,  as 
provided  for  in  section  4398  preceding,  who  proves,  to  the 
satisfaction  of  the  auditor  to  whom  such  application  is  made 
that  the  applicant  has  served  as  a  soldier  or  sailor  in  the  service 
of  the  United  States  during  the  late  rebellion  or  Spanish  Ameri- 


S1G  THE    OHIO    MUNICIPAL    CODE. 

can  war,  and  has  been  honorably  discharged  therefrom,  shall  pay 
for  such  license,  to  such  auditor,  the  sum  of  fifty  cents  and  no 
more,  which  sum  of  fifty  cents  shall  be  the  fee  of  such  auditor 
for  issuing  such  license.  [1902,  February  13:  95  v.  11;  91 
v.  370.] 

Sec.  4398b  R.  S.  [Privileges,  etc.,  Cincinnati.]  §  2.  Such  li- 
cense so  granted  to  any  honorably  discharged  soldier  or  sailor,  as 
provided  for  in  section  1  [§  4398a]  of  this  act,  shall  grant  the 
privilege  to  the  one  so  licensed  to  pursue  his  calling  within  the 
limits  of  the  state  of  Ohio,  for  the  term  of  one  year  from  the 
date  of  such  license,  and  shall  exempt  him  from  paying  any 
municipal  or  other  license  during  the  period  covered  by  the 
license  issued  to  him  by  such  auditor.  It  shall,  however,  be 
competent  for  such  municipal  authorities  issuing  such  license 
to  revoke  and  cancel  it  whenever  it  is  shown  to  their  satisfac- 
tion that  such  person  has  been  guilty  of  any  wrongful  act  in  con- 
nection with  any  such  business  or  is  not  otherwise  a  -fit  person 
t«  be  engaged  in  such  business,  and  provided  further  that  the 
provisions  of  this  act  shall  not  apply  to  corporations  containing 
cities  of  the  first  grade  of  the  first  class.      [91  v.  370.] 

Sec.  4399  R.  S.  [Privileges  and  term  of  license.]  A  license 
granted  in  conformity  with  the  preceding  section  shall  authorize 
the  person  in  whose  name  the  same  is  granted  to  vend  and  sell 
goods,  wares,  and  merchandise  for  one  year  from  the  date  of 
the  receipt  of  the  treasurer,  as  a  peddler  or  traveling  merchant ; 
but  any  such  person  may  take  out  a  license  to  peddle  for  the 
term  of  three  or  six  months,  and  pay  for  the  same  proportion- 
ably,  in  accordance  with  the  provisions  of  the  preceding  section.1 
[59  v.  67,  §  3;  S.  &  S.  511;  (S.  &  C.  907).] 

( 1 )   This  refers  to  §  4398  R.  S. 

Sec.  4400  R.  S.  [License  to  peddle,  no  authority  to  sell  by 
auction,  etc.]  A  license  to  peddle  shall  not  authorize  the  person 
named  therein  to  sell  goods,  wares,  or  merchandise  at  auction, 
vendue,  or  public  outcry,  nor  to  sell  goods  in  any  way  by  the 
agency  of  any  other  person.      [46  v.  36,  §  4;  S.  &  C.  907.] 

Sec.  4415  R.  S.  [Show  not  to  be  exhibited  without  permit  from 
auditor.]  No  proprietor,  or  agent  of  the  proprietor,  of  a 
traveling  public  show,  not  prohibited  by  law,  shall  exhibit  or 
show  any  natural  or  artificial  curiosity,  or  exhibition  of  horse- 
manship in  a  circus,  or  otherwise,  for  a  price,  until  a  permit 
has  been  obtained  from  the  auditor  of  the  county  in  which  it 
is  intended  to  show  or  exhibit,  specifying  the  time  and  place 
euch  show  may  exhibit  in  the  county ;  which  permit  the  auditor 


LICENSES.  817 

shall  not  issue  until  there  has  been  paid  into  the  county  treas- 
ury, the  following  sums  for  each  day  such  show  is  to  be  exhibit- 
ed, to  wit :  in  counties  containing  a  population  not  exceeding 
twenty-five  thousand  by  the  last  federal  census,  ■  twenty-five  , 
dollars.  In  counties  containing  a  population  of  more  than 
twenty-five  thousand  and  not  exceeding  forty  thousand  by 
said  census,  forty  dollars,  and  in  all  other  counties,  sixty  dol- 
lars. [1882,  April  15 :  79  v.  114;  Kev.  Stat.  1880;  29  v.  446, 
§  1 ;  45  v.  43,  §  2 ;  (S.  &  C.  1406 ;  S.  &  C.  64).] 

Sec.  4416  R.  S.  [Right  of  municipal  corporations  to  license, 
unaffected.]  The  preceding  section  shall  not  be  construed  to 
interfere  with  the  right  of  power  of  a  municipal  corporation  to 
impose  a  license  upon  all  shows  exhibited  in  such  corporation 
in  addition  to  that  imposed  herein.  [47  v.  51,  §  3 ;  S.  &  C. 
1407.] 

Sec.  4402 — 1  R.  S.  [Statement  required  of  itinerant  vendor.] 
§  1.  No  itinerant  vendor  shall  advertise,  represent  or  hold  forth 
any  sale  of  goods,  wares,  or  merchandise  as  an  insurance, 
bankrupt,  insolvent,  assignee,  trustee,  estate,  executor,  admin- 
istrator, receiver  or  closing-out  sale,  or  as  a  sale  of  any  goods 
damaged  by  smoke,  fire,  water  or  otherwise,  or  in  any  similar 
form  unless  he  shall,  before  so  doing,  state,  under  oath,  to  the 
secretary  of  state,  either  in  the  original  application  for  a  state 
license,  or  in  a  supplementary  application,  subsequently  filed 
and  copied  on  the  license,  the  details  of  said  bankruptcy, 
insolvency,  trusteeship,  closing-out,  damage,  etc.,  such  details 
to  include  and  cover  all  the  facts  relating  to  time,  place  and 
persons  necessary  to  exactly  locate  and  fully  identify  the  same.1 
[91  v.  173;  95  v.  544.] 

(1)  Validity.— This  act  §§  (4402- 
1)  to  (4402-9)  held  constitutional.' 
Ex  parte  Mosler,  8  C.  C.  324. 

Sec.  4402 — 2  R.  S.  [State  and  local  licenses,  etc.]  §  2.  It 
shall  be  the  duty  of  every  itinerant  vendor,  whether  principal 
or  agent,  before  commencing  business,  to  take  out  a  state 
license  and  local  licenses  in  the  manner  hereinafter  set  forth; 
but  nothing  herein  contained  shall  affect  the  right  of  any  mu- 
nicipal corporation  to  pass  such  additional  ordinances  relative 
to  itinerant  vendors  as  may  be  permissible  under  the  general 
law,  or  under  their  respective  charters.  Every  itinerant  ven- 
dor desiring  to  do  business  in  this  state  shall  deposit  with  the 
secretary  of  state  the  sum  of  $500  as  a  special  deposit,1  and 
after  such  deposit,  upon  application  in  proper  form  and  the- 


818 


THE    OHIO    MUNICIPAL    CODE. 


payment  of  a  further  sum  of  $25  as  a  state  license  fee,  the  sec- 
retary of  state  shall  issue  to  him  an  itinerant  vendor's  license, 
authorizing'  him  to  do  business  in  this  state  in  conformity  with 
the  provisions  of  this  act  for  the  term  of  one  year  from  the 
date  thereof.  Every  license  shall  set  forth  a  copy  of  the  appli- 
cation upon  which  it  is  granted.  Such  license  shall  not  be 
transferable  nor  give  authority  to  more  than  one  person  to  sell 
goods  as  an  itinerant  vendor,  either  by  agent  or  clerk,  or  in  any 
other  way  than  in  his  own  proper  person ;  but  any  licensee  may 
have  the  assistance  of  one  or  more  persons  in  conducting  his 
business,  who  shall  have  authority  to  aid  their  principal,  but  not 
to  act  for  or  without  him.      [91  v.  173.] 

(1)    The  cash   deposit  with  sec-      creditors  cannot  secure  it.    Edit.,  37 
retary    of    state    is    to    secure    pur-       B    354. 
chasers  of  goods  who  are  defrauded; 

Sec.  4402— 3  R.  S.  [Penalty.]  §  3.  Every  itinerant  vendor 
who  shall  sell  or  expose  for  sale  at  public  or  private  sale  any 
goods,  wares,  merchandise  or  any  article  of  wearing  apparel 
without  state  and  local  licenses  therefor,  and  all  persons  both 
principals  and  agents,  who  shall  by  circular,  handbill,  news- 
paper, or  in  any  other  manner  advertise  any  such  sale  before 
proper  licenses  shall  be  issued  to  the  vendor,  shall  be  guilty 
of  a  misdemeanor  and  shall  be  fined  not  more  than  $1,000  nor 
less  than  $50,  or  imprisoned  not  more  than  six  months,  or  both. 
[91  v.  173 ;  95  v.  544.] 

Sec.  4402 — 4R.  S.  ["Wearing-apparel"  and  "itinerant  ven- 
dors" defined;  sales  by  commercial  travelers,  etc.]  §  4.  The 
words  "  wearing  apparel,"  for  the  purposes  of  this  act,  shall 
be  construed  to  mean  and  include  all  kinds  of  clothing,  under- 
wear, hats  and  shoes.  The  words  "  itinerant  vendors,"  for  the 
purposes  of  this  act,  shall  be  construed  to  mean  and  include  all 
persons,  both  principals  and  agents,  who  engage  in  a  temporary 
or  transient  business  of  selling  goods,  wares  and  merchandise 
in  this  state  and  who  shall  remain  in  one  place  for  a  period  of 
less  than  (90)  ninety  days.  This  act  shall  not  apply  to  sales 
made  to  dealers  by  commercial  travelers  or  selling  agents  in  the 
usual  course  of  business,  nor  to  bona  fide  sales  of  goods,  wares 
and  merchandise  by  sample  for  future  delivery.      [91  v.  173.] 

Sec.  4402 — 5  R.  S.  [Application  for  license,  etc.]  §  5.  All 
applications  for  license  shall  be  sworn  to,  shall  disclose  the 
names  and  residences  of  the  owners  or  parties  in  whose  interest 
said  business  is  conducted,  and  shall  be  kept  on  file  by  the 
secretary  of  state,  and  a  record  shall  be  kept  by  him  of  all 
licenses  issued  upon  such  applications.     All  files  and  records, 


LICENSES.  819 

both  of  the  secretary  of  state  and  of  the  respective  clerks  of  mu- 
nicipal corporations,  shall  be  in  convenient  form  and  open  for 
public  inspection.  Before  selling  under  said  state  license, 
every  itinerant  vendor  shall  exhibit  the  same  to  the  clerk  or 
mayor  of  any  municipal  corporation  where  he  proposes 'to  make 
sales,  and  upon  payment  to  said  clerk  or  mayor  of  a  further 
local  license  fee  as  provided  for  by  the  ordinance,  or  .in  ab- 
sence of  any  such  ordinance,  then  such  amount  as  the  clerk  or 
mayor  of  such  municipal  corporation  shall  determine,  and  the 
proof  of  payment  of  all  such  other  license  fees,  if  any,  as  are 
legally  chargeable  upon  local  sales,  the  said  clerk  shall  re- 
cord the  state  license  in  full,  shall  indorse  upon  it  the  words 
"  local  license  fees  paid/'  and  shall  affix  his  official  signature, 
together  with  the  date  of  such  indorsement.  He  shall  then 
issue  a  local  license  authorizing  sales  within  the  limits  of  such 
town  or  city.  Any  failure  to  obtain  a  local  license  and  have 
proper  indorsement  made  on  the  state  license  shall  Be  sub- 
jected to  the  same  penalty  as  though  no  state  license  had  been 
issued.      [91  v.   178.] 

Sec.  4402— 6  E.  S.  [Penalty.]  §  6.  Any  false  statement  in 
an  application,  either  original  or  supplementary,  for  a  license, 
and  any  failure  on  the  part  of  any  licensee  to  comply  with  all 
the  requirements  of  this  act,  shall  subject  said  itinerant  vendor 
to  the  same  penalty  as  if  he  had  no  license,  and  to  the  further 
and  additional  penalty  of  a  fine  of  $100,  to  be  paid  to  the 
person  first  filing  complaint  therefor  with  the  proper  informing 
or  prosecuting  officer.      [91  v.  173.] 

Sec.  4402 — 7  R.  S.  [Enforcement  of  act.]  §  7.  It  shall  be 
the  duty  of  the  respective  informing  or  prosecuting  officer  in 
each  municipal  corporation  in  this  state,  to  see  that  the  pro- 
visions of  this  act  are  complied  with  and  to  prosecute  for  vio- 
lation of  the  same.  All  such  officers  shall  have  power  to  de- 
mand the  production  of  the  proper  state  and  local  licenses  from 
any  itinerant  vendor  advertising  or  actually  engaged  in  busi- 
ness, and  any  failure  to  produce  such  licenses  shall  be  prima 
facie  evidence  against  such  vendor  that  he  has  none.  [91  v. 
173.] 

Sec.  4402 — 8  R.  S.  [Jurisdiction  in  prosecutions ;  expiration  or 
surrender  of  state  licenses;  disposition  of  special  deposit.]  §  8. 
Prosecutions  under  this  act  may  be  heard  and  determined  by 
any  court  having  criminal  jurisdiction  over  other  offenses  pun- 
ishable by  law,  to  the  same  extent  as  hereinabove  provided.  All 
state  licenses  shall  expire  by  limitation  one  year  from  the  date 
thereof,   and  may  be,  if  so  desired  surrendered  at  any  time 


820  THE    OHIO    MUNICIPAL    CODE. 

prior  thereto  for  cancellation.  Upon  the  expiration  and  re- 
turn or  surrender  of  each  state  license  the  secretary  shall  can- 
cel the  same,  indorse  the  date  of  delivery  and  cancellation 
thereon  and  place  the  same  on  file.  He  shall  then  hold  the 
special  deposit  of  each  licensee,  hereinabove  mentioned,  for  the 
period  of  60  days,  and  after  satisfying  any  and  all  claims  made 
upon  the  same  under  the  section  next  following,  shall  return  said 
deposit  or  such  portion  of  the  same,  if  any,  as  may  remain  in 
his  hands,  to  the  licensee  depositing  it.      [91  v.  173.] 

Sec.  4402 — 9  R.  S.  [Deposit  subject  to  attachment  and  execu- 
tion, etc.]  §  9.  Each  deposit  made  with  the  secretary  of  state 
shall  be  subject^  so  long  as  it  remains  in  his  hands,  to  attach- 
ment and  execution  in  behalf  of  creditors  whose  claims  arise 
in  connection  with  business  done  in  the  state,  and  to  the  pay- 
ment of  any  and  all  fines  and  penalties  incurred  by  the  licensee 
through  violation  of  this  act.  Claims  under  civil  process  shall 
be  enforced  against  the  secretary  of  state  as  garnishee  or  trus- 
tee by  action  in  the  usual  form,  and  claims  for  satisfaction  of 
fines  and  penalties  shall  be  enforced  by  the  prosecuting  at- 
torney serving  notice  of  pendency  of  action  (and  judgment 
when  obtained)  upon  the  secretary  of  state.  All  claims  upon 
each  deposit  shall  be  satisfied  after  judgment  in  the  order 
in  which  notice  of  the  claim  is  received  by  the  secretary  of 
state,  and  until  all  such  claims  are  satisfied,  or  the  deposit  ex- 
hausted ;  but  no  notices  filed  after  the  expiration  of  the  60  days' 
limit  aforesaid  shall  be  valid.  ~No  deposits  shall  be  paid  over 
by  the  secretary  of  state  to  licensees  so  long  as  there  are  any 
outstanding  claims  or  notices  of  claims  against  them  respec- 
tively, unless  he  shall  find  that  there  is  unreasonable  delay  in 
enforcing  the  same.      [91  v.  173.] 


HAMLETS.  821 


XXII 
HAMLETS.1 


1.     TKUSTEES  OF  HAMLETS. 

Sec.  1648  R.  S.     [Officers  of  hamlets;  election  and  terms.]     The 

officers  2  of  the  hamlet  shall  consist  of  three  trustees,  who  shall 
be  electors  residing  within  the  corporate  limits  and  who  shall 
hold  their  offices  for  three  years,  except  as  herein  provided, 
and  until  their  successors  are  elected  and  qualified ;  a  clerk  and 
treasurer,  each  of  whom  shall  be  electors  in  said  hamlet  and 
shall  hold  their  offices  for  two  years  and  until  their  successors 
are  elected  and  qualified;  a  marshal  and  a  supervisor,  both  of 
whom  shall  be  electors  in  said  hamlet  and  shall  hold  their 
offices  for  one  year,  except  as  hereinafter  provided,  and  until 
their  successors  are  elected  and  qualified.  [93  v.  289 ;  90  v. 
78;  66  v.  157,  §  47;  66  v.  159,  §  58.] 

( 1 )  See  note  "  Status  of  Ham-  As  to  police  court  in  hamlets,  see 
lets  "  under  §  1  of  the  Code,  page  3.  §§  1833  to  1836  R.  8.,  inclusive,  un- 

(2)  See   notes    to   §    128    of   the  der  title  Judicial,  in  Part  II. 
Code,  page  328. 

Sec.  1649  R.  S.  [Term  of  office.]  At  the  first  meeting  of  the 
trustees,  they  shall  determine  by  lot  the  term  of  service  of  each, 
so  that  one  shall  serve  for  one  year,  one  for  two  years,  and  one 
for  three  years,  and  at  every  succeeding  annual  election,  one 
trustee  shall  be  elected  to  serve  for  three  years,  and  they  shall 
appoint  from  their  own  body  a  president  of  the  board:  [66  v. 
158,  §  48;  73  v.  170,  §  49.] 

Sec.  1650  R.  S.  [Vacancy;  quorum.]  The  trustees  shall  have 
power  to  fill  any  vacancies  which  may  happen  in  any  of  the 
offices  from  the  electors  of  the  corporation,  and  the  person  so 
appointed  shall  continue  in  office  until  the  next  regular  election 
and  until  his  successor  is  elected  and  qualified ;  and  any  two 
of  the  trustees  may  transact,  business,  but  notice  of  any  meeting 
for  the  purpose  must  be  given  to  all.1  [90  v.  78 ;  66  v.  158,  § 
50.] 


822  THE    OHIO    MUNICIPAL    CODE. 

( 1 )  Acting  separately. —  Indi-  the  corporation.  State  ex  rel.  vs. 
vidual  members  of  such  a  board  Liberty  Twp.,  22  O.  S.  144;  Mc- 
cannot  act  separately  so  as  to  bind      Cortle  vs.  Bates,  29  O.  S.  419. 

Sec.  1651  R.  S.  [Power  over  streets,  etc.]  The  trustees  shall 
have  the  exclusive  jurisdiction  of  public  roads,  streets,  al- 
leys, sewers  and  drains  within  the  limits  of  the  corporation ;  * 
they  shall  have  power  to  construct  and  keep  in  repair  bridges 
and  sidewalks;  lay  out,  establish,  open,  widen,  vacate,  narrow, 
improve,  straighten;  keep  in  order,  repair  and  light  roads, 
streets,  alleys ;  open  and  construct  and  keep  in  order  and  repair 
sewers  and  drains;  and  enter  upon,  appropriate,  take  and  hold 
for  the  purposes  aforesaid  real  estate  within  its  limits,  and  as- 
sess, and  collect  a  charge  for  the  construction,  improvement  and 
repair  of  any  such  road,  street  or  alley;  but  if  a  street  is  va- 
cated or  narrowed,  the  right  of  way  or  easement  of  lot  owners 
shall  not  thereby  be  impaired.      [90  v.  315 ;  74  v.  198,  §  51.] 

( 1 )  Street  railways  in  hamlets.  As  to  necessity  of  consent  of  trus- 
— §  1651  R.  S.  gives  to  trustees  of  tees  of  hamlets  to  construction  of 
hamlets  exclusive  jurisdiction  of  street  railway,  where  authority  of 
public  streets,  etc.,  and  when  an  cwner  of  private  turnpike  on  which 
interurban  street  railway  company  the  road  is  constructed  has  been 
has  permission  from  such  trustees  obtained,  see  St.  Ry.  v.  Cummins- 
to  use  the  streets  within  the  ham-  ville,  14  O.  S.  523,  542,  in  con- 
let,  the  county  commissioners  can-  nection  with  §  1550  R.  S.  (repeal- 
not  maintain  an  action  to  enjoin  ed)  which  provided  that  villages  in- 
their  use  by  such  company.  Com-  corporated  for  special  purposes 
missioners   v.   R.    R.    Co.,    21    C.    C.  should  be  hamlets. 


Sec.  1652  R.  S.  [Limitation  on  such  powers;  hamlets  in  coun- 
ties containing  cities  of  the  first  class.]  No  ordinance  providing 
for  the  opening  or  widening  of  any  road,  street  or  alley,  or  the 
appropriation  of  land  therefor,  and  no  ordinance  providing  for 
any  improvement,  the  cost  of  which,  or  any  part  thereof,  shall 
be  specially  assessed  upon  any  lands  in  the  hamlet,  shall  be 
passed,  except  upon  the  petition  of  two-thirds  of  the  owners 
of  lots  or  lands  through  or  along  which  the  road,  street,  alley, 
sewer  or  other  improvement,  or  part  thereof,  to  be  opened, 
widened,  improved  or  lighted,  shall  pass ;  provided,  however, 
that  in  all  counties  containing  cities  of  the  first  class  all  the 
provisions  of  chapter  four,  division  seven,  of  this  title,1  affect- 
ing  or  relating  to  villages  generally,  shall  apply  to  and  affect 
hamlets,  and  wherever  the  word  "  council "  occurs  in  said 
chapter,  the  same  shall  be  held  to  apply  to  and  include  the 


HAMLETS.  823 

trustees  of  hamlets.      [93  v.  289;  92  v.  281;  91  v.  367;  90  v. 
315;  66  v.  158,  §  52.] 

( 1 )      Statutes     referred     to. —  provisions     corresponding     to     this 

Chap.    4,    Div.    7,    Title    XII,    was  chapter  are  now  contained  in  §§  50 

the    chapter    of    the    Revised    Stat-  to  94,  inclusive  of  the  Code, 
utes   relating  to   assessments.      The 

2.     GENERAL  POWERS  OF  HAMLETS. 

Sec.  1653  E.  S.  [General  powers  of  hamlets.]  In  addition  to 
the  powers  specifically  granted  in  this  title,  and  subject  to  the 
exceptions  and  limitations  in  other  parts  of  it,  hamlets  shall 
have  the  general  powers  enumerated  in  this  section,  and  the 
trustees  may  provide  by  ordinance  for  the  exercise  and  enforce- 
ment of  the  same: 

1.  To  protect  the  property  and  persons  of  the  inhabitants 
against  injuries  and  destruction  by  fire,  thieves,  robbers,  burg- 
lars, and  persons  violating  the  public  peace. 

2.  To  suppress  riots,  noise  and  disturbance,  gambling, 
drunkenness,  and  indecent  and  disorderly  assemblages  and 
conduct 

3.  To  punish  all  lewd  and  lascivious  behavior  in  the  streets, 
alleys  and  other  public  places. 

4.  To  suppress  and  restrain  disorderly  houses  and  houses 
of  ill-fame. 

5.  To  regulate  and  restrain  ale,  beer  and  porter  houses  or 
shops,  and  houses  and  places  of  notorious  and  habitual  resort 
for  tippling  and  intemperance. 

6.  To  regulate  taverns  and  other  houses  of  public  entertain- 
ment. 

7.  To  regulate  or  restrain  theatricals,  exhibitions,  and  public 
shows,  and  all  exhibitions  of  whatever  name  or  nature,  for 
which  money  is  demanded  or  received;  but  public  lectures  on 
historic^  literary  or  scientific  subject  shall  not  come  within  the 
provisions  of  this  section. 

8.  To  prevent  injury  or  annoyance  from  any  thing  danger- 
ous, offensive  or  unhealthy,  and  to  cause  any  nuisance  to  be 
abated. 

9.  To  acquire  real  estate  for  public  halls  and  school  houses, 
and  to  erect  the  necessary  buildings  thereon. 

10.  To  protect  all  public  buildings  and  property  within  or 
owned  by  the  corporation. 

11.  To  provide  public  cemeteries,  and  for  the  improvement 
and  protection  thereof,  and  to  regulate  the  burial  of  the  dead. 


824  THE    OHIO    MUNICIPAL    CODE. 

12.  To  regulate  auctioneering,  and  to  regulate,  license  or 
prohibit  the  sale  at  auction  of  goods,  wares  and  merchandise 
imported  into  the  corporation  for  the  purpose  of  being  sold  at 
auction. 

13.  To  regulate  the  weighing  and  measuring  of  hay,  wood,, 
coal  and  other  articles  exposed  for  sale. 

14.  To  regulate  peddling,  and  to  regulate,  license  or  pro- 
hibit the  sale  by  peddlers  of  all  goods,  wares  and  merchandise 
not  of  their  own  manufacture  or  production;  but  commercial 
travelers  shall  not  come  within  the  provisions  of  this  section. 

15.  To  restrain  and  prohibit  the  sale  and  exposure  for  sale 
of  books,  papers  and  periodicals  of  an  obscene  nature. 

16.  To  provide  for  the  comfort,  convenience  and  safety,  pre- 
serve the  health  and  peace,  promote  the  good  order  and  pros- 
perity, and  improve  the  morals  of  the  inhabitants  of  the  cor- 
poration.1 [1886,  April  27:  83  v.  92;  Eev.  Stat.  1880;  66 
X  158,  §  53.] 

(1)   See  notes  to  §  7  of  the  Code,   page  43. 

Sec.  1654  R.  S.  [Power  to  make  by-laws,  etc.]  For  the  pur- 
pose of  exercising  the  powers  above  granted,  the  trustees  of 
hamlets  shall,  as  to  the  providing  for  the  cost  and  expense 
of  improvements  by  them  made,  and  as  to  making  and  publish- 
ing of  all  by-laws,  resolutions  and  ordinances  and  the  enforce- 
ment of  the  same,  have  in  all  respects  like  rights  and  remedies 
as  are  herein  given  to  incorporated  villages;1  but  all  by-laws 
and  ordinances  shall  require  for  their  adoption  the  concurrence 
of  at  least  two  of  the  trustees,  and  shall  only  be  adopted  at  a 
stated  meeting.      [90  v.  316 ;  73  v.  199,  200,  §  54.] 

(1)   See  §   196  of  the  Code. 

3.     OTHER  OFFICERS  OF  HAMLETS. 

Sec.  1700  R.  S.  [Appointment  of  police  officers;  duties  and  com- 
pensation to  be  prescribed  by  trustees;  removal;  powers,  compensa- 
tion and  duties  of  president  of  trustees.]  The  trustees  of  hamlets 
shall  have  power  to  appoint  from  the  electors  of  said  hamlet 
such  other  police  officers  as  may  be  necessary;  and  they  shall, 
by  proper  by-laws,  resolutions  or  ordinances,  prescribe  the 
duties  and  compensation  of  the  officers  so  appointed  as  well  as 
said  marshal,  in  addition  to  the  duties  now  prescribed  by  law ; 
and  they  may  remove  any  such  appointed  officer  and  appoint, 


HAMLETS.  825 

another  at  their  discretion,  and  may  remove  said  marshal  for 
good  cause  shown;  and  the  president  of  the  board  of  trustees 
shall  be  a  conservator  of  the  peace  throughout  the  corporation ; 
and  shall  perform  the  same  duties  and  shall  have  the  same 
jurisdiction  and  powers  as  are  conferred  upon  the  mayors  of 
villages  in  all  civil  and  criminal  cases,  and  his  proceedings  may 
be  reviewed  in  the  same  manner ;  and  he  shall  receive  no  com- 
pensation for  his  services,  except  such  as  is  allowed  for  similar 
services  to  justices  of  the  peace.  [93  v.  289;  90  v.  78;  77  v. 
15;  Rev.  Stat.  1880;  73  v.  170,  §  49.] 

Sec.  1701  R.  S.  [Bond  of  president,  treasurer  and  marshal.] 
The  president  of  the  board  of  trustees,  treasurer  and  marshal 
shall  each  give  bond  to  the  corporation  for  the  faithful  per- 
formance of  his  duties,  and  each  bond  shall  be  in  such  amount 
as  the  trustees  may  determine  except  that  the  bond  of  the  pres- 
ident of  the  board  of  trustees  shall  in  no  case  be  less  than  five 
hundred  dollars,  and  each  bond  shall  be  subject  to  the  ap- 
proval of  said  trustees,  and  after  being  recorded  in  the  office 
of  the  township  clerk  shall  remain  in  their  custody;  but  if  a 
trustee  is  principal  in  any  such  bond  the  duties  with  respect  to 
it  shall  be  performed  by  the  other  trustees.  [92  v.  84;  90  v. 
79;  66  v.  159,  §  58.] 

Sec.  1702  R.  S.  [Duties  and  fees  of  clerk  and  treasurer.]  The 
clerk  shall  keep  a  full  record  of  all  the  proceedings  of  the 
board  of  trustees,  and  shall  draw  orders  on  the  treasurer  for  the 
disbursement  of  moneys  of  the  corporation  only  on  the  orders 
of  the  trustees;  and  he  shall  be  entitled  to  the  same  fees  that 
township  clerks  are.  The  treasurer  shall  have  the  custody  of 
all  moneys  of  the  corporation,  and  shall  disburse  the  same  only 
on  orders  signed  by  the  hamlet  clerk  and  authorized  by  the 
trustees,  and  he  shall  be  entitled  to  the  same  fees  that  township 
treasurers  receive.      [90  v.  79;  66  v.  159,  §  58.] 

Sec.  1703  R.  S.  [Marshal  and  road  superintendent  in  ham- 
lets; compensation.]  The  marshal  shall  be  the  chief  of  police, 
and  have  the  powers  of  marshals  in  villages,  and  for  his  ser- 
vices as  such  shall  receive,  in  addition  to  any  salary  fixed  by 
the  trustees  by  ordinance,  the  same  fees,  and  be  paid  in  the 
same  manner  as  marshals  in  other  municipal  corporations  for 
like  services,  and  for  his  services  when  he  acts  as  road  super- 
intendent, in  which  office  he  shall  act  under  the  direction  of 
the  trustees,  he  shall  be  paid  out  of  the  proper  hamlet  treasury 
or  treasuries,  the  same  compensation  allowed  to  other  road 
superintendents,  and  where  the  offices  of  marshal  and  road  su- 
perintendent are  separated,  the  road  superintendent  shall  per- 
form his  duties,  be  paid  in  the  same  manner  and  receive  the 


826  THE   OHIO    MUNICIPAL    CODE. 

Fame  compensation  as  is  provided  in  the  first  part  of  this  sec- 
tion for  the  marshal  when  acting  as  road  superintendent.1 
[1906,  April  16,  98  v.  328;  86  v.  251;  77  v.  15;  66  v.  159.] 

(1)    Arrest  without  warrant.—  vs.   Hoverman,   18   C.   C.    637;    and 

A  marshal  may  arrest  without  war-  he   is   not   liable   in  damages    if  he 

rant  one  whom  he  sees  violating  an  take  the  person  so  arrested  before 

ordinance   of  a  hamlet.     Billington  the  proper  magistrate.     lb. 

Sec.  1704 U.S.     [No    compensation    to    trustees;    exception.] 

The  members  of  the  board  of  trustees,  in  their  capacity  as  such, 
or  as  trustees,  shall  receive  no  compensation,  except  in  counties 
containing  a  city  of  the  second  grade  of  the  first  class,  where 
each  trustee  shall  receive  fifty  dollars  a  year  for  his  services 
as  trustee,  to  be  paid  out  of  the  hamlet  treasury.  [92  v.  406 ;. 
66  v.  159,  §  55.] 

Sec.  1705  R.  S.  [Time  incumbents  to  remain  in  office,  and  by- 
laws, etc.,  to  remain  in  force.]  Trustees  and  officers  of  incor- 
porated villages  for  special  purposes,  shall  continue  in  office 
as  trustees  and  officers  of  the  proper  hamlets  until  their  suc- 
cessors are  elected  and  qualified;  and  all  by-laws,  resolutions^ 
and  ordinances  of  such  incorporated  villages  for  special  pur- 
poses, whether  originally  adopted  by  them,  or  by  special  road 
districts,  shall  remain  in  force  as  the  by-laws,  resolutions,  and 
ordinances  of  the  proper  hamlets,  until  repealed.  [66  v.  159,, 
§  57.] 

4.     TAXATION  IN  HAMLETS. 

Sec.  2681  R.  S.  [Taxation  in  hamlets.]  The  trustees  of  ham- 
lets shall  have  power  to  levy,  annually,  upon  the  taxable  prop- 
erty therein,  such  rate  of  taxes  as  may  be  necessary  for  the 
purposes  mentioned  in  chapter  one,  of  division  three,  of  this 
title,1  not  exceeding  ten  mills  on  the  dollar,  for  all  purposes,  in 
any  one  year ;  and  the  taxes  so  levied  shall  be  collected  in  the 
same  manner  as  the  taxes  of  other  municipal  corporations. 
[66  v.  257,  §  639.] 

( 1 )  This  refers  to  Title  XII,  R.  S. 


MISCELLANEOUS    STATUTES.  827 


XXIII 

MISCELLANEOUS   STATUTES. 


1.     Certain    General   Provisions. 

Sec.  1536  R.  S.  [Enlarged  meaning  of  certain  words.]  In  the 
interpretation  of  this  title,1  unless  the  context  shows  that 
another  sense  was  intended,  the  word  "  village  "  shall  mean 
incorporated  village ;  "  person  "  2  includes  a  private  corpora- 
tion ;  "  writing "  includes  printing :  "  oath  "  includes  an  af- 
firmation ;  "  insane  "  and  "  lunatic  "  include  every  species  of 
mental  derangement;  "council,"  in  cities  which  have  a  board 
of  aldermen,  includes  common  council ;  "  property  "  includes 
real,  personal,  and  mixed  estates  and  interests ;  and  "  land  " 
and  "  real  estate  "  3  include  rights  and  easements  of  an  incor- 
poreal nature;  but  this  enumeration  shall  not  be  construed  to 
require  a  strict  construction  4  of  any  other  words  in  this  title. 

(1)  This  refers  to  Title  XII,  R.  S.       nish,    5    O.   477,   478;    Kerlin   Bros. 

(2)  Person  would  not  ordinarily       v.  Toledo,  20  C.  C.  603. 

include  corporation.  State  vs.  Cin-  (4)  Construction. —  General 
cinnati  Fertilizer  Co.,  24  O.  S.  611.  words  are  sometimes,  by  construe- 
But  see  Norris  v.  State,  25  O.  S.  tion,  limited  in  their  scope,  when 
217;  see  also  Allen  v.  State,  10  O.  taken  in  conjunction  with  their  sub- 
S.  287;  Garder  v.  Fayette  Co.,  16  ject  matter.  Aultman  v.  Seiberling, 
O.  S.  353;  Burke  v.  State,  34  O.  S.  31  O.  S.  201,  204;  Brigel  v.  Star- 
79;  Hamilton  v.  State,  34  O.  S.  82.  buck,    34   O.    S.    280,   285;    see    also 

(3)  Land  and  real  estate. —  Board  of  Education  v.  Board,  46  O. 
Meaning  of,  see  Dodson  v.  City,  34  S.  595;  Goodall  v.  Gerke  Brewing 
O.  S.  276;  Valley  Ry.  Co.  v.  Pouch-  Co.,  56  O.  S.  257. 

ot,  4  C.  C.  187,  192;  Winton  v.  Cor- 

Sec.  1537  R.  S.  [As  to  publication  of  notices.]  Where  in  this 
title  a  notice  is  directed  to  be  published  in  a  newspaper,  and  no 
such  paper  is  published  at  the  place  mentioned,  or  if  such  news- 
paper is  published  at  the  place,  but  the  publisher  refuses,  on 
tender  of  his  usual  charge  for  a  similar  notice,  -to  insert  the 
same  in  his  newspaper,  then  a  publication  in  any  newspaper  of 


828  THE    OHIO    MUNICIPAL    CODE. 

general  circulation  at  such  place,  shall  be  sufficient;  but  noth- 
ing herein  contained  shall  be  construed  to  dispense  with  pos- 
ters where  they  are  provided  for.1 

( 1 )  See  §  124  of  the  Code. 

Sec.  1544  R.  S.  [Right  of  visitation.]  The  general  assembly 
of  Ohio  by  a  committee,  the  governor  of  the  state,  the  council 
of  the  corporation  by  a  committee,  the  mayor  or  police  judge 
of  the  corporation,  the  board  of  health  of  the  corporation,  the 
judge  of  any  court  of  this  state,  and  the  grand  jury  of  tho 
county,  may,  at  any  time,  visit  and  inspect  any  of  the  benevo- 
lent or  correctional  institutions  established  by  any  municipal 
corporation,  and  examine  the  books  and  accounts  of  the  same. 
[66  v.  272,  §  724.] 

2.     Advertising. 

Sec.  4366  R.  S.  [Rates  for  legal  advertising.]  Publishers  of 
newspapers  may  charge  and  receive  for  the  publication  of  ad- 
vertisements,1 notices,  and  proclamations,  the  price  or  rate  for 
which  is  not  otherwise  fixed  by  law,  required  to  be  published 
by  any  public  officer  of  the  state,  or  of  a  county,  city,  village, 
hamlet,  township,  school,  benevolent,  or  other  public  institu- 
tion, or  by  a  trustee,  assignee,  executor,  or  administrator,  the 
following  sums,  to-wit:  For  the  first  insertion,  one  dollar  for 
each  square,  and  for  each  additional  insertion,  authorized  by 
law  or  the  person  ordering  the  insertion,  fifty  cents  for  each 
square,  fractional  squares  to  be  estimated  at  the  same  rate  for 
space  occupied;  and  in  advertisements  containing  tabular  or 
rule  work,2  an  additional  sum  of  fifty  per  cent,  may  be  charged 
in  addition  to  the  foregoing  rates.      [73  v.  75,  §  1.] 

(1)   Advertisement.  —  Meaning     (2)   Tabular  work. — Meaning  of. 
of.     See  Murray  v.  Auglaize  Co.,  13/&. 
Dec.  723. 

Sec.  4367  R.  S.  [What  notices  to  be  published  in  two  news- 
papers.] *  Every  proclamation  for  an  election,  order  fixing  the 
times  of  holding  court,  notice  of  the  rates  or  taxation,  bridge, 
pike,  and  notice  to  contractors,  and  such  other  advertisements 
of  general  interest  to  the  tax-payers  as  the  auditor,  treasurer, 
probate  judge,  or  commissioners  may  deem  proper,  shall  be 
published  in  two  newspapers  of  opposite  politics,  at  the  county 
seat,2  if  there  be  such  published  in  the  county  seat,  and  in  all 
counties  having  cities  of  eight  thousand  inhabitants  or  more, 
not  the  county  seat  of  such  counties,  additional  publication  of 
such  notices  shall  be  made  in  two  newspapers  of  opposite  poli- 
tics in  such  city;  but  this  chapter  shall  not  apply  to  the  publi- 


MISCELLANEOUS    STATUTES.  829 

cation  of  notices  of  delinquent  tax  and  forfeited  land  sales.* 
[1889,  April  12:  86  v.  258;  Eev.  Stat.  1880;  73  v.  75,  §  2.] 

(1)  Validity. —  This  act  is  not  seat. —  The  requirement  that  pub- 
in  contravention  of  the  14th  amend-  lication  be  at  the  county  seat,  is 
ment   of  U.   S.   constitution.      State      mandatory.      76. 

v.  Comm'rs,  7  N.  P.  239.  (3)   Code  provisions  on  publica- 

(2)  Publication      at      county      tion,  see  §   124, 

Sec.  4369  R.  S.  [What  shall  constitute  a  square  in  legal  adver- 
tisements.] A  square  shall  be  considered  and  held  to  be  a 
space  occupied  by  two  hundred  and  forty  ems  of  the  type  used  in 
printing  such  advertisements ;  and  all  legal  advertising  shall  be 
set  up  in  compact  form,  without  any  unnecessary  spaces,  blanks, 
or  head  lines,  and  shall  be  printed  in  type  not  smaller  than  non- 
pareil. [1880,  March  6:  77  v.  40;  Rev.  Stat.  1880;  73  v.  75, 
§3.] 

Sec.  4370  R.  S.  [What  is  sufficient  publication.]  It  shall  be 
sufficient  to  publish  any  notice  or  advertisement  required  by 
law  to  be  given  for  a  definite  period,  if  one  side  of  the  news- 
paper in  which  publication  is  made  is  printed  in  the  county, 
municipal  corporation,  or  state,  in  which  the  newspaper  con- 
taining such  notice  or  advertisement  is  required  to  be  printed. 
[74  v.   208,   §   1.] 

3.    Boundaries  of  Townships  Changed. 

Sec.  1380  R.  S.  [Change  of  boundaries  in  certain  cases,  or  erec- 
tion of  new  township.]  If  the  limits  of  a  municipal  corpora- 
tion do  not  comprise  the  whole  of  the  established  township  or 
townships  in  which  it  is  situated,  or  if  by  change  of  the  limits 
of  such  corporation,  or  otherwise,  they  include  territory  lying 
in  more  than  one  township,  and  the  council  of  such  corporation 
shall  in  either  case,  by  a  vote  of  the  majority  of  the  members 
thereof,  petition  the  commissioners  of  the  proper  county  for  a 
change  of  township  lines  so  as  to  make  them  identical  in  whole 
or  in  part  with  the  limits  of  the  corporation,  or  to  erect  a  new 
township  out  of  the  portion  of  said  township  or  townships  in- 
cluded within  the  limits  of  said  municipal  corporation,  such 
board  of  county  commissioners  may,  on  presentation  of  such 
petition,  with  the  proceedings  of  the  council  duly  authenticated, 
at  any  regular  or  adjourned  session,  change  the  boundaries  of 
the  township  or  townships,  or  erect  such  new  township  accord- 
ingly.1     [89  v.  63;  70  v.  4,  §  480;  (S.  &  C.  1548).] 

( 1 )   See  notes  to  §  3  of  the  Code,  d„  6, 


830  THE    OHIO    MUNICIPAL    CODE. 

Sec.  1381  R.  S.  [What  to  be  done  with  parts  of  township  left.] 
If,  in  making  such  change,  any  township  not  having  within 
its  limits  a  city  or  village  is  reduced  in  territory  to  less  than 
twenty-two  square  miles,  such  township  may  be  by  the  com- 
missioners thereupon  annexed  to  any  contiguous  township  or 
townships,  or  the  commissioners  may  annex  thereto  territory 
from  any  contiguous  township  or  townships,  and  erect  a  new 
township,  as  in  their  opinion  will  best  promote  justice  and 
public  convenience;  but  if  the  majority  of  the  householders  of 
such  reduced  township  outside  the  limits  of  such  municipal 
corporation  petition  therefor,  the  commissioners  may  erect  such 
reduced  township  into  a  new  township.  [89  v.  64;  70  v.  4. 
§  481;   (S.  &  C.  1548).] 

Sec.  1382  R.  S.  [How  change  made.]  When  the  change  of 
boundaries  of  townships  is  required  under  section  thirteen  hun- 
dred and  eighty,  by  reason  of  the  extension  of  the  limits  of  a 
corporation,  the  change  shall  be  made  by  annexation  to  the 
township  in  which  the  corporation,  or  the  greater  part  of  it, 
was  before  situate,  of  such  parts;  of  other  townships  as  may 
be  covered  by  such  extension.      [70  v.  4,  §  482.] 

Sec.  1383.  [When  corporation  in  two  or  more  counties,  where 
application  to  be  made.]  When  the  corporation  is  situate  in  two 
or  more  counties,  the  application  authorized  by  section  thirteen 
hundred  and  eighty,  may  be  made  to  the  commissioners  of  the 
county  in  which  the  change  of  boundaries  is  proposed,  or  if 
the  change  is  to  be  made  in  two  or  more  counties,  then  to  the 
commissioners  of  the  several  counties  in  respect  of  the  territory 
situate  within  them,  respectively.      [66  v.  149,  §  483.] 

4.     Briers  and  Canada  Thistles. 

Sec.  4730  R.  S.     [Destruction  of  brush,  briers,  weeds,  etc.,  on 

highways.]  All  pike  superintendents  and  turnpike  directors 
having  control  of  and  being  charged  with  the  duty  of  repair- 
ing macadamized,  graveled  and  improved  roads  and  turn- 
pikes, all  road  superintendents  of  county  and  township  roads 
and  the  street  commissioners  of  any  city  or  village  shall  be- 
tween the  first  and  twentieth  days  of  June,  and  between  the 
first  and  twentieth  days  of  August,  and  if  necessary,  between 
the  first  and  twentieth  days  of  September  of  each  year,  cut  and 
burn,  or  destroy,  or  cause  the  same  to  be  done,  all  brush, 
briars,  burrs,  vines,  Russian  and  Canadian  or  common  thistle, 
or  other  noxious  weeds,  growing  or  being  within  the  limits  of 


MISCELLANEOUS  STATUTES.  831 

any  county  or  township  road,  turnpike,  improved,  graveled  or 
macadamized  road,  street,  or  alley  within  his  jurisdiction; 

[Compensation.]  such  road  superintendent,  turnpike  direc- 
tor, or  pike  superintendent  shall  be  allowed  reasonable  com- 
pensation which  shall  not  exceed  $1.50  per  day  for  all  necessary 
labor  employed  by  him  in  the  performance  of  said  work,  to 
be  allowed  in  the  case  of  county  and  township  out  of  the  road 
fund,  or  general  fund,  and  in  the  case  of  macadamized,  grav- 
eled and  improved  roads  and  turnpikes,  such  labor  is  to  be  al- 
lowed and  paid  for  out  of  the  turnpike  fund  of  the  county  and 
in  the  same  manner  as  would  be  done  in  the  event  of  a  repair 
thereof,  but  a  street  commissioner  shall  be  allowed  and  paid, 
for  any  such  services  performed  by  him,  by  the  proper  munici- 
pal authorities; 

[Owner  or  tenant  may  perform  such  labor;  compensation.] 

the  superintendent  of  any  such  roads  shall  allow  any  land 
owner  or  tenant  to  cut  and  destroy  any  such  brush,  briers, 
burrs,  vines,  thistles  or  other  noxious  weeds,  growing  or  being 
on  such  roads  along  the  lands  abutting  on  such  roads  owned 
or  occupied  by  such  land  owner  or  tenant,  but  before  the  said 
work  is  performed  shall  fix  a  reasonable  compensation  therefor, 
which  shall  be  credited  on  the  road  tax  of  that  year  assessed 
against  said  premises;  provided,  however,  that  such  land 
owner  or  tenant  shall  do  said  work  or  cause  the  same  to  be 
done  before  the  first  day  of  the  month  in  which  such  work  is 
required  to  be  done  as  specified  in  this  section. 

[Destruction  of  briers,  brush,  etc.,  on  toll  roads  and  rail- 
ways; penalty.]  The  superintendent,  or  manager  of  any  toll, 
steam  or  electric  road  shall  cut,  burn  or  destroy,  or  cause  the 
same  to  be  done,  all  brush,  briers,  burrs,  vines,  Russian,  Canada 
or  common  thistle,  or  other  noxious  weeds  growing  or  being 
cut  within  the  limits  of  any  such  road  between  the  days  of  each 
month  as  above  specified  in  this  section,  and  in  default  thereof, 
and  for  five  days  thereafter,  the  trustees  of  any  township 
through  which  any  such  road  passes,  shall  cause  the  same  to 
be  done,  and  shall  have  the  right  of  action  against  any  such 
toll,  steam  or  electric  road  company  for  the  amount  of  such 
work,  together  with  one  hundred  per  cent,  penalty,  and  cost 
of  action  to  be  recovered  before  any  justice  of  the  peace  of 
such  countv.  [98  v.  336;  95  v.  51;  94  v.  300;  93  v.  49;  90  v. 
301 ;  81  v.  22 ;  R.  S.  of  1880 ;  72  v.  11,  §  1.] 

Sec.  4732  R.  S.  [Destruction  of  Canada  or  Russian  thistles, 
wild  lettuce  or  wild  mustard  growing  on  lands  in  townships.] 


832  THE    OHIO    MUNICIPAL    CODE. 

The  trustees  of  any  township  of  this  state  upon  information  in 
writing,  that  Canada  or  Russian  thistles,  wild  lettuce  or  wild 
mustard  are  growing  on  any  lands  in  their  township,  and  are 
about  to  spread  or  mature  seed  between  the  first  day  of  June 
and  the  fifteenth  day  of  October  of  each  year,  said  trustees 
shall  cause  notice  in  writing  to  be  served  upon  the  owners,  les- 
see, agent  or  tenant  having  charge  of  any  such  lands  notifying 
such  owner,  lessee,  agent,  or  tenant  that  Canada  or  Russian 
thistles  or  other  noxious  weeds  mentioned  in  this  section,  are- 
growing  on  such  lands,  and  that  such  Canada  thistles,  or  other 
noxious  weeds,  shall  be  cut  and  destroyed  within  five  days  after 
the  service  of  such  notice ;  and  in  default  thereof,  the  said 
township  trustees  shall  enter  upon  such  lands  and  cut  and  de- 
stroy such  thistles,  or  other  noxious  weeds ;  and  that  the  cost 
of  cutting  the  same  with  the  cost  of  such  notice',  will  become 
a  lien  against  said  lands.  Any  constable  or  deputy,  marshal 
of  any  city  or  village,  or  deputy,  is  hereby  authorized  to  make 
service  and  return  of  any  such  notice,  and  the  fees  of  such  serv- 
ice and  return  shall  be  the  same  as  are  allowed  for  service  and 
return  of  summons  in  civil  cases  before  magistrates.  If  any 
owner,  lessee,  agent  or  tenant  having  charge  of  any  such  lands, 
shall  fail  to  comply  with  such  notice,  the  township  trustees 
shall  cause  said  thistle  or  other  noxious  weeds  aforesaid  to  be 
cut  and  destroyed,  and  may  employ  any  person  to  perform  such 
labor,  and  allow  such  person  fifteen  cents  per  hour  for  the 
time  occupied  in  performing  such  labor,  and  pay  the  sum  of 
such  labor  out  of  any  money  in  the  treasury  of  said  township 
not  otherwise  appropriated,  and  take  receipt  for  the  same. 
Said  township  trustees  shall  make  return  in  writing  to  the 
board  of  commissioners  of  their  county,  with  a  statement  of 
the  charges  for  their .  services,  the  amount  paid  to  the  person 
for  performing  such  labor,  together  with  the  fees  of  the  offi- 
cers who  made  the  service  of  notice  and  return  with  a  proper 
description  of  the  premises ;  and  the  same  having  been  allowed, 
shall  be  entered  upon  the  tax  duplicate,  and  shall  be  a  lien 
against  said  lands,  from  and  after  the  date  of  such  entry  on 
the  duplicate,  and  shall  be  collected  as  other  taxes,  and  re- 
turned to  the  township  with  the  general  fund.  [92  v.  106  ; 
90  v.  302;  81  v.  17;  Rev.  Stat.  1880;  74  v.  144,  §  1.] 

Sec.  4732a  R.  S.  [Destruction  of  Canada  and  common  thistles 
and  other  noxious  weeds  within  cities  and  villages  other  than  Cin- 
cinnati, Cleveland,  Columbus  and  Dayton.]  That  in  all  cities 
and  incorporated  villages,  except  cities  of  the  first  and  second 
grade  of  the  first  class  and  first,  and  second  grade  of  the  second 
class,  the  mayor  shall,  during  the  month  of  May  of  each  year, 


MISCELLANEOUS  STATUTES.  833 

•cause  notice  to  be  published  for  two  consecutive  weeks  in  one  or 
more  newspapers  published  in  the  corporation,  or  by  posting  up 
written  or  printed  notices  in  said  city  or  village  at  three  public 
places  for  ten  days  next  previous  to  the  first  day  of  June  of 
each  year,  warning  the  owners,  lessees  or  agents  of  lots  and 
lands  within  such  city  or  village  to  cause  all  Canada  or  common 
thistles,  or  other  noxious  weeds  mentioned  in  section  forty-seven 
hundred  and  thirty-two,  growing  on  any  such  lots  or  lands 
within  said  corporation,  to  be  cut  and  destroyed  so  that  they 
do  not  mature  seed  or  spread  to  adjoining  lands.  The  com- 
mon council  of  such  city  or  village  shall,  upon  information  in 
writing  that  Canada  or  common  thistles  or  other  noxious  weeds 
mentioned  in  section  forty-seven  hundred  and  thirty-two  are 
growing  on  any  such  lands,  within  their  corporation  between 
the  tenth  day  of  June  and  the  fifteenth  day  of  October  of  each 
year,  [shall]  cause  such  Canada  or  common  thistles  or  other 
noxious  weeds  to  be  cut  and  destroyed  so  that  they  do  not  ma- 
ture seed  or  spread  to  other  lands,  and  said  council  may  employ 
any  person  to  cut  and  destroy  said  noxious  weeds  and  allow 
such  person  so  employed  fifteen  cents  per  hour  for  the  time 
employed  in  such  labor.  And  said  council  shall  pay  said 
amount  out  of  any  money  of  the  general  fund  in  the  treasury 
of  said  city  or  village  not  otherwise  appropriated,  and  take  a 
receipt  therefor.  And  said  council  shall  make  return  in  writ- 
ing to  the  board  of  commissioners  of  their  county,  with  a  state- 
ment of  the  amount  paid  for  such  labor,  and  one  dollar  addi- 
tional, as  a  penalty  on  each  lot  or  parcel  of  land  containing 
less  than  one  acre,  and  with  two  dollars  on  each  lot  or  parcel 
containing  more  than  one  acre.  The  same  having  been  al- 
lowed, the  auditor  shall  enter  the  amount  so  certified  to  him 
on  the  tax  duplicate  of  the  county  against  the  lots  or  lands 
on  which  said  Canada  or  common  thistles  or  other  noxious 
weeds  were  cut  and  destroyed,  and  the  amounts  shall  be  a  lien 
against  said  lots  or  lands  from  and  after  such  entry,  and  shall 
be  collected  as  other  taxes  are  collected,  and  returned  to  such 
city  or  village  with  the  general  fund ; 

[Release  of  land  on  payment  of  costs  of  such  destruction  and 
penalty.]  Provided,  that  [if]  any  such  owner  of  such  lots  or 
lands  shall  tender  to  the  treasurer  of  such  township  in  cases 
of  townships,  or  to  the  treasurer  of  such  city  or  village  in  the 
case  of  city  or  village,  the  amounts  so  chargeable  against  such 
lots  or  lands  for  such  labor,  together  with  the  penalty  as  cer- 
tified to  by  the  clerk  of  said  township,  city  or  village  showing 
the  amount  of  such  charges  and  penalty,  the  treasurer  shall  re 


834  THE    OHIO    MUNICIPAL    CODE. 

ceive  the  amount  so  tendered,  upon  which  said  lots  and  lands 
shall  be  discharged  from  further  liability.      [90  v.  303 ;  81  v. 

24.] 

Sec.  4732b U.S.  [Compensation  of  township  trustees;  penalty 
for  not  performing  duties;  disposition  of  fines.]  Township  trus- 
tees shall  be  entitled  to  $1.50  per  day  for  their  services  under 
this  act;  the  mayor  of  any  city  or  village,  or  trustees  of  any 
township,  or  superintendent  or  other  officer  of  any  toll  road, 
or  superintendent  of  any  improved  or  macadamized  road,  or 
supervisor  of  any  county  or  township  road,  or  street  commis- 
sioner of  any  city  or  village,  who  neglects  or  refuses  to  per- 
form their  duties  as  mentioned  in  sections  4730,  4732  and 
4732a,  shall  be  fined  in  the  sum  of  fifty  dollars  in  any  court 
having  competent  jurisdiction  of  such  cases;  such  fines  shall 
go  into  the  road  fund  of  the  township  in  cases  against  town- 
ship or  toll  road  officers;  and  into  the  street  fund  in  cases 
against  mayors  or  other  municipal  officers.      [90  v.  304.] 

5.     Cigarette-Tax  Distribution. 

Sec.  4364 — 40 R.  S.  [Distribution  of  tax  and  penalties; 
Hamilton  county.]  That  the  revenues  and  fines  resulting  under 
the  provisions  of  this  act  shall  be  distributed  as  follows,1  to- 
wit:  In  every  county,  one-half  of  the  money  paid,  as  herein 
provided,  into  the  county  treasury  on  account  of  any  business 
aforesaid  carried  on  in  any  city,  village,  hamlet  or  township 
therein,  shall  be  placed  to  the  credit  of  the  general  revenue 
fund  of  the  state,  and  be  paid  into  the  state  treasury  by  the 
county  treasurers,  as  is  provided  in  other  cases;  one-fourth  of 
the  money  SO  paid  shall,  upon  the  warrant  of  the  county  audi- 
tor, be  paid  on  account  of  any  business  aforesaid  carried  on  in 
any  such  municipal  corporation,  into  the  treasury  of  such  cor- 
poration to  the  credit  of  the  police  fund  thereof;  provided,  in 
corporations  having  no  police  fund,  the  entire  one-fourth  shall 
pass  to  the  credit  of  the  general  revenue  fund  thereof;  the  re- 
maining one-fourth  part  thereof,  together  with  all  other  reve- 
nues resulting  hereunder  in  said  county,  shall  be  passed  to  the 
credit  of  the  poor  fund  of  such  county;  provided,  that  in  all 
counties  in  which  there  is  no  county  infirmary,  said  remaining 
one-fourth  part  thereof  shall  be  passed  to  the  credit  of  the  in- 
firmary fund  or  poor  fund  of  the  township,  village  or  city  in 
which  the  same  shall  have  been  collected;  and  in  such  coun- 
ties where  the  money  is  paid  on  account  of  any  business  carried 
on  in  any  township  outside  of  any  such  municipal  corporation, 


MISCELLANEOUS    STATUTES.  835 

the  said  two-fourths  shall  be  passed  to  the  credit  of  the  infirmary 
fund  or  the  poor  fund  of  said  township ;  and  provided,  that  in 
counties  having  a  city  of  the  first  grade  of  the  first  class,  with 
a  city  infirmary,  the  one-fourth  part  herein  otherwise  appor- 
tioned to  the  poor  fund  of  the  county,  shall  be  divided  between 
the  city  and  county  infirmary  funds,  in  the  proportion  of  the 
revenues  received  from  the  city  to  the  revenue  from  the  county 
outside  the  city.      [91  v.  311 ;" 90  v.  235.] 

(1)  The  act  referred  to  is  part 
of  the  cigarette  law  §§  4364-31  to 
4364-41  R.  S. 


6.     Curative  Act. 

An  act  to  carry  into  effect  the  intention  both  of  officials  and 
parties  respecting  certain  county  and  municipal  instruments  and 
proceedings. 

[Sec.  1.]  [Contract  entered  into  and  valid  at  time  of  making 
shall  be  deemed  valid  notwithstanding  change  in  rule  of  judicial 
construction.]  That  whenever  any  officer  or  officers,  board  or 
board  of  officers,  of  any  county,  township,  city  or  incorporated 
village  have  by  resolution,  ordinance,  order  or  other  proceed- 
ing, and  in  pursuance  of  any  statutory  legislation  of  this  state, 
authorized  or  caused  any  county,  township  or  municipal  bonds 
or  other  obligations  or  instruments  to  be  issued  or  executed 
and  delivered,  or  any  county,  township  or  municipal  contracts, 
grants,  franchises,  rights  or  privileges  to  be  made  or  given 
which  were  valid  according  to  any  rule  of  judicial  construction 
and  adjudication  of  the  state  and  prevailing  at  the  date  of 
any  such  action  or  proceeding,  and  loans  or  other  things  of 
value  have  been  effected  or  acquired  or  expenditures  have  been 
made  by  other  parties  in  reliance  upon  such  construction  or  ad- 
judication, then  and  in  every  such  case  said  bonds,  obligations, 
contracts,  grants,  franchises,  rights  and  privileges  and  each 
of  them,  shall  be  deemed  and  held  in  all  respects  valid  and 
binding  notwithstanding  such  rule  or  judicial  construction  and 
adjudication  as  to  such  other  similar  legislation  shall  have 
been  subsequently  changed.      [1902,  May  9,  95  v.  444.] 

7.     Feags   on    Buildings. 

Sec.  803 — 1 R.  S.  [Foreign  flag  forbidden  on  public  build- 
ings; exceptions.]      It  shall  not  be  lawful  to  display  the  flag  or 


836  THE    OHIO    MUNICIPAL    CODE. 

emblem  of  any  foreign  country  upon  any  state,  county  or  mu- 
nicipal building;  provided,  however,  that  whenever  any  for- 
eigner shall  become  the  guest  of  the  United  States,  the  state 
or  any  city  upon  proper  proclamation  by  the  governor  or  mayor 
of  such  city,  the  flag  of  the  country  of  which  such  public  guest 
shall  be  a  citizen  may  be  displayed  upon  such  public  buildings. 
[92  v.   89.] 

Sec.  803— 2R.  S,  [Penalty.]  Whoever  violates  any  of  the 
provisions  of  this  act  shall  be  fined  not  more  than  fifty  dollar.* 
or  be  imprisoned  thirty  days  or  both.      [92  v.  89.] 

8.     Militia;  Mobs,  Kiots,  etc. 

Sec.  3096  R.  S.  [When  militia  required  to  aid  civil  authority.] 
Whenever,  in  any  county,  there  is  a  tumult,  riot,  mob,  or  any 
body  of  men  acting  together  with  intent  to  commit  a  felony,  or 
to  do  or  offer  violence  to  person  or  property,  or  by  force  and 
violence  to  break  or  resist  the  laws  of  the  state,  or  there  is 
reasonable  apprehension  thereof,  the  commander-in-chief,  the 
sheriff  of  the  county,  the  mayor  of  any  municipal  corporation 
therein,  or  a  judge  of  any  court  of  the  state  or  United  States, 
may  issue  his  call  to  the  commanding  officer  of  any  regiment, 
battalion,  company,  troop,  or  battery,  to  order  his  command, 
or  any  part  thereof,  describing  the  same,  to  be  and  appear,  at 
a  time  and  place  therein  specified,  to  act  in  aid  of  the  civil 
authority.      [63  v.  70,  §  43 ;  S.  &  S.  458;  (S.  &  C.  457).] 

( 1 )  Cleveland  City  Guards  act, 

see   Revised   Statutes,   §§   3056-1   to 
3056-5«,  inclusive. 

Sec.  3096a  R.  S.  [In  case  of  riot,  mayor  of  municipal  corpora- 
tion may  cause  saloons  to  be  kept  closed.]  Whenever  in  any 
municipal  corporation  there  is,  in  the  opinion  of  the  mayor  of 
said  municipal  corporation,  a  tumult,  riot,  mob  or  any  body  of 
men  acting  together  with  intent  to  commit  a  felony  or  to  do  or 
offer  to  do  violence  to  person  or  property,  or  by  force  and  vio- 
lence to  wreck  property  and  resist  the  laws  of  this  state,  or  there 
is  reasonable  apprehension  thereof,  the  mayor  of  said  municipal 
corporation  shall  issue  his  proclamation  requiring  the  keepers 
of  all  saloons,  or  places  where  intoxicating  liquors  are  sold  at 
retail  as  a  beverage,  to  close  such  places  of  business  and  to  keep 
said  places  of  business  closed  during  the  continuance  of  such 


MISCELLANEOUS    STATUTES.  837 

above  described  disturbance,  when  the  mayor  shall  withdraw  his 
proclamation.  Whoever  keeps  open  such  place,  or  fails  to 
comply  with  such  proclamation  of  said  mayor,  shall  be  fined  not 
less  than  one  hundred  dollars,  nor  more  than  five  hundred  dol- 
lars, or  imprisoned  not  less  than  ten  days,  nor  more  than  thirty 
days,  or  both.      [97  v.  142.] 

Sec.  3097  R.  S.  [Must  obey  call  of  the  civil  authority.]  The 
officer  to  whom  the  call  is  directed  shall  forthwith  order  the 
troops  therein  mentioned  to  parade  at  the  time  and  place  ap- 
pointed ;  and  if  he  neglect  or  refuse  to  obey,  or  if  any  officer  re- 
fuse or  neglect  to  obey  any  order  issued  in  pursuance  of  such 
call,  he  shall  be  cashiered,  and  be  further  punished  by  fine,  and 
imprisonment  not  exceeding  six  months,  as  a  court-martial  may 
adjudge ;  and  an  enlisted  man  who  neglects  or  refuses  to  appear 
at  the  place  of  parade,  or  to  obey  any  order  issued  in  such  case ; 
or  a  person  who  advises  or  endeavors  to  persuade  an  officer  or 
soldier  to  refuse  or  neglect  to  appear  at  such  place,  or  to  obey 
such  order,  shall  be  imprisoned  not  exceeding  six  months,  or 
fined  not  exceeding  one  thousand  dollars,  or  both.  [63  v.  70, 
§44;S.  &S.  458.] 

Sec.  3098  R.  S.  [How  the  men  must  be  notified  to  appear.] 
Whenever  the  commanding  officer  of  a  company,  troop,  or  battery 
orders  out  his  command  for  such  duty,  he  may  order  enlisted 
men  to  notify  the  men  enrolled  in  such  organization  to  appear 
at  the  time  and  place  appointed,  who  shall  give  notice  of  such 
time  and  place  of  meeting,  to  each  man  personally,  or  by  leav- 
ing at  his  usual  place  of  abode  a  written  or  printed  order, 
signed  by  the  enlisted  man  serving  the  same,  which  notice  shall 
be  a  sufficient  warning.  [74  v.  227  (238),  §  45;  (S.  &  S. 
458).] 

Sec.  3099  R.  S.  [Penalties  for  disobedience  of  orders.]  Every 
enlisted  man  who  refuses  or  neglects  to  serve  such  notice,  when 
duly  ordered  so  to  do,  and  every  officer  or  enlisted  man  who, 
having  been  served  with  notice  as  provided  in  the  preceding 
section,  refuses  or  neglects  to  obey  the  same  promptly,  shall 
pay  not  less  than  ten  nor  more  than  one  hundred  dollars,  as 
may  be  adjudged  by  a  court-martial.  [63  v.  70,  §  46 ;  S.  &  S. 
458;  (S.  &  C.  456).] 

9.     Museum  and  Park  Companies. 

Sec.  3868  R.  S.     [Museum,  park,   pond,   and  rink  companies.] 

When  a  corporation  organized  for  the  purpose  of  contracting 


838  THE    OHIO    MUNICIPAL    CODE. 

and  conducting  a  museum  to  be  used  for  the  exhibition  and 
preservation  of  works  of  nature  and  art,  and  for  instruction  in 
connection  therewith,  or  a  public  hall  of  any  kind,  or  a  park, 
pond  or  rink  to  be  used  for  skating  or  other  lawful  sports,  or 
for  holding  fairs,  festivals,  public  meeting,  concerts  or  enter- 
tainments of  any  kind  not  prohibited  by  law,  provides  in  its 
articles  of  incorporation  that  its  buildings,  or  designated  part 
thereof,  shall  be  devoted  to  the  use  of  the  public  for  all  pur- 
poses set  forth  in  its  articles,  free  from  all  costs,  charges,  and 
expense,  except  such  as  may  be  necessary  for  providing  the 
means  to  keep  such  buildings,  or  such  designated  part  thereof 
and  its  grounds  in  proper  condition  and  repair,  and  to  pay 
the  expenses  of  insurance,  care,  management  and  attendance, 
so  that  the  public  may  have  the  benefit  thereof  for  all  the 
legitimate  uses  set  forth  in  its  articles  at  as  little  expense  as 
possible,  and  that  no  stockholder,  subscriber,  trustee,  director 
or  member  shall  receive  any  compensation,  gain  or  profit  from 
the  corporation  for  such  public  use  of  its  buildings  or  such 
designated  part  thereof,  the  authorities  of  any  city,  village  or 
county  in  which  the  corporation  is  located,  may  appropriate  to 
such  use  and  grant  the  right  and  permit  such  corporation  to 
erect  and  perpetually  maintain  its  buildings  on  any  of  the 
parks,  lands,  lots  or  grounds  which,  or  the  use  of  which  be- 
long to  or  are  subject  to  the  control  of  such  city,  village  or 
county  or  the  authorities  thereof,  and  to  control  the  same  on 
the  terms  and  conditions  which  may  be  agreed  upon  between 
such  public  authorities  and  the  corporation;  and  in  every  such 
case  it  shall  be  lawful  for  the  public  authorities  and  the  said 
corporation  to  agree  that  additional  trustees  of  said  corporation 
may  be  appointed  by  such  public  authorities,  and  upon  the 
number  of  such  trustees  and  the  method  of  their  appointment, 
and  they  may  agree  that  any  officer  or  officers  of  said  city,  vil- 
lage or  county  to  be  designated  by  them  may  act  ex-officio  as 
such  trustees.  [(73  v.  8,  §  1 ;  69  v.  20,  §  1.)  1881,  April 
12:  78  v.  127;  Eev.  Stat  1880.] 

10.     Name  of  Municipality,  how  Changed. 

Sec.  5852  R.  S.  [What  names  may  be  changed.]  The  names 
of  persons,  the  names  of  towns,  villages,  and  hamlets,  and  the 
names  of  companies  or  associations  incorporated  in  this  state, 
may  be  changed  in  the  manner  provided  in  this  chapter.  [40 
v.  28,  §  1;  51  v.  293,  §  1 ;  50  v.  274,  §  77;  S.  &  C.  1138;  S. 
&  C.  309 ;  S.  &  C.  317.] 


MISCELLANEOUS    STATUTES.  839 

Sec.  5854  R.  S.  [Proceeding  to  change  name  of  town,  village, 
or  hamlet.]  Kot  less  than  twelve  freeholders  of  the  vicinity 
may  file  a  petition  in  the  court  of  common  pleas  of  the  county, 
for  the  change  of  the  name  of  any  town,  village,  or  hamlet  in 
such  county,  setting  forth  the  reason  why  such  change  of  name 
is  desirable,  and  the  name  proposed  to  be  substituted ;  and  the 
court,  upon  being  satisfied  by  proof,  that  the  prayer  of  the 
petitioners  is  just  and  reasonable,  that  notice  as  required  in 
the  last  section  has  been  given,1  that  at  least  three-fourths  of 
the  inhabitants  of  such  town,  village,  or  hamlet  desire  such 
change,  and  that  there  is  no  other  town,  village,  or  hamlet  in 
this  state  of  the  same  name  as  that  which  is  prayed  for,  may 
order  such  change  of  name.       [40  v.  28,  §  3 ;  S.  &  C.  1138.] 

( 1 )     Notice. —  The   section   refer-  tion  in  a  newspaper  of  general  circu- 
red  to  is  §  5853  R.   S.,  relating  to  lation  in  the  county  at  least  thirty- 
change  of  name  of  persons  and  re-  days  prior  to  the  filing  of  the  peti-. 
quires  notice  of  the  intended  appli-  tion. 
cation   to  be  given  by  one  publica- 

11.    Pounds. 

Sec.  4202  U.S.  [Certain  animals  not  to  run  at  large;  pen- 
alty.] 1  No  person  or  corporation  being  the  owner  or  having 
the  charge  of  any  horses,  mules,  cattle,  sheep,  goats,  swine,  dogs 
or  geese  shall  suffer  the  same  to  run  at  large  2  in  any  public 
road  or  highway,  or  in  any  street,  lane  or  alley,  or  upon  any 
uninclosed  land  or  cause  such  animals  to  be  herded,  kept,  or 
detained  for  the  purpose  of  grazing  the  same  on  premises  other 
than  those  owned  or  occupied  by  the  owner  or  keeper  of  such 
animals,  except  as  hereinafter  provided ;  and  any  person  violat- 
ing the  provisions  of  this  section  shall  forfeit  and  pay  for  every 
such  violation,  as  penalty  therefor,  not  less  than  one  dollar, 
nor  more  than  five  dollars,3  continued  violation,  after  notice, 
or  prosecution,  shall  be  held  to  be  an  additional  offense  for  each 
and  every  day  of  such  continuance.  [93  v.  129;  78  v.  18;  Kev. 
Stat.  1880;  62  v.  185,  §  1,  56  v.  77,  §§  1,  2,  3 ;  (S.  &  S.  7; 
S.  &  C.  76).] 

(1)     Common    law    rule    not  (2)   No  breach  without  negli~ 

adopted    in    Ohio. — The    common  gence. — The     owner     of     domestic 

rule  required  the  owner  to  restrain  animals   mentioned   in  this   section, 

domestic  animals,  but  this  rule  was  is  not  guilty  of  any  breach  if  they 

not   adopted   in  Ohio.     Railroad  v.  be    at    large    without    the    omissior 

Stephenson,   24  O.   S.  48.  on  his  part  of  reasonable  care:    lb.; 

Duties    of    road    superintend^  Railway   v.   Howard,   40   O.    S.    6; 

ents. — For  further  provisions,  see  Rutter  v.  Henry,  46  O.  S.  272;  Ru- 
§§4203  to  4208  R.  S. 


840 


THE    OHIO    MUNICIPAL    CODE. 


di  v.  Lang,  12  C.  C.  529.  But  see 
Morgan  v.  Hudnell,  52  O.  S.  552. 

And  one  finding  an  animal  at 
large  without  negligence  of  the  own- 
er, cannot  confine  said  animal  un- 
til the  owner  tender  compensation. 
Rutter  v.  Henry,  46  O.  S.  272;  Ru- 
di  v.  Lang,  12  C.  C.  529.  Contra, 
Holtzkemper  v.  Langloth,  8  C.  C. 
520. 

(3)    Liability  of  owner. —  Own- 


er of  domestic  animal  not  generally 
liable  for  injury  committed  by  such 
animal  while  in  a  place  where  it 
rightfully  may  be,  unless  owner 
knew  of  vicious  propensities.  Mor- 
gan v.  Hudnell,  52  O.  S.  552. 

Nor  is  the  owner  of  unenclosed 
land  liable  for  injuries  to  cattle 
straying  on  same.  Ferguson  v.  Mi- 
ami Powder  Co.,  9  C.  C.  445. 


Sec.  4207  R.  S.  [Animal  running  at  large  may  be  treated  as 
stray;  penalty.]  A  person  finding  an  animal  mentioned  in 
section  forty-two  hundred  and  two,  at  large,1  contrary  to  the 
provisions  of  this  chapter  may,  and  any  constable  of  any  town- 
ship, or  any  road  superintendent  in  any  township  or  village,  or 
marshal  or  constable  of  any  city  or  village,  on  view  or  informa- 
tion, shall  take  up  and  confine  the  same,  forthwith  giving  no- 
tice thereof  to  the  owner,  if  known,  and  if  not  known,  by  post- 
ing notices  describing  such  animals  therein,  in  at  least  three 
public  places  within  the  township;  and  if  the  owner  does  not 
appear  and  claim  his  property,  and  pay  all  charges  for  taking 
up,  advertising,  and  keeping  the  same,  within  ten  days  from 
the  date  of  the  notice,  the  animals  may  be  proceeded  with  under 
the  laws  regulating  estrays;  the  mere  act  of  any  such  animal 
running  at  large  in  or  upon  any  of  the  places  mentioned  in  sec- 
tion forty-two  hundred  and  two,  shall  be  prima  facie  evidence 
that  such  animal  is  so  running  at  large  contrary  to  the  provi- 
sions thereof,  but  if  it  be  proven  that  such  animal  escaped 
from  the  owner  or  keeper  thereof,  without  his  knowledge  or 
fault,  then  it  shall  be  given  up  to  the  owner  or  keeper,  upon 
payment  of  a  reasonable  compensation  for  taking  up  and  keep- 
ing the  same.  And  if  any  constable,  road  superintendent  or 
marshal,  above  named,  shall  wilfully  neglect  to  perform  any 
of  the  duties  above  required,  he  shall  be  fined  not  more  than 
twenty-five  dollars  ($25.00),  or  imprisoned  not  more  than  ten 
days  or  both.     [1906,  April  16,  98  v.  334;  81  v.  105;  72  v.  170.] 


(1)  Cattle  at  large.— Under 
provision  of  former  act  cattle  run- 
ning at  large,  with  or  without  per- 
mission of  the  owner  could  be  taken 
up.    Sloan  v.  Hubbard,  34  O.  S.  583. 

And  the  right  to  take  up  animals 
running  at  large  is  not  affected  by 


failure  of  township  trustees  to  es- 
tablish a  pound.     lb. 

A  horse  breaking  out  of  an  en- 
closed field,  passing  through  an  ad- 
joining field  and  thence  into  an- 
other field,  is  not  "  at  large"  con- 
trary to  provision  of  §  4202  It.  S.; 


MISCELLANEOUS  STATUTES.  841 

and  no  person  is  authorized  to  take       vided    by    this    section.      Rutter    v. 
up  and  confine   it  until  the  owner      Henry,  46  O.  S.  272. 
pay  or  tender  compensation  as  pro- 

Sec.  4209 — 1  R.  S.  [Pounds  in  incorporated  villages.]  §  1. 
The  council  of  any  incorporated  village  may  procure  or  construct 
an  inclosure  or  pound  wherein  animals  taken  up  within  the 
said  incorporated  village,  under  the  provisions  of  sections  4207 
and  1692  1  of  the  Revised  Statutes,  may  be  confined,  and  like 
notices  shall  be  given  and  like  proceedings  shall  be  had  in 
such  cases  as  are  required  by  section  4207,  Revised  Statutes; 
and  the  council  may  appropriate  from  the  general  fund  of 
such  incorporated  village  an  amount  not  exceeding  one  hun- 
dred dollars  for  said  purpose.      [90  v.  19.] 

(1)  §  1692  R.  S.  is  repealed  by 
the  Code.  See  Code  §  7  and  note 
(1)    thereunder,  p.  43. 

Sec.  4209—2  R.  S.  [Pound  in  Columbus.]  §  1.  The  board  of 
public  works  in  cities  of  the  first  grade  of  the  second  class  be  and 
the  same  are  hereby  empowered  to  establish,  construct  and 
maintain  pounds  and  appoint  pound-masters  in  such  cities; 
provided,  however,  that  if  the  establishment,  construction  and 
maintenance  of  any  one  of  such  pounds,  necessitates  an  ex- 
penditure at  one  time  of  more  than  five  hundred  dollars 
($500.00),  the  consent  of  the  councils  of  such  cities  therefor 
shall  be  first  obtained.      [88  v.  121.] 

Sec.  4209a  R.  S.  [Pounds  in  cities  of  third  grade  of  first 
class  (Toledo.)]  That  in  cities  of  the  first  class  of  the  third 
grade,  unless  the  common  council  of  such  city  shall  at  all  times 
maintain  and  continue  an  inclosure  or  pound,  in  which  animals 
running  at  large,  contrary  to  the  provisions  of  the  statutes  of 
the  state,  and  taken  up  by  any  person,  shall,  at  all  times,  be 
received  and  detained  until  discharged  or  disposed  of  accord- 
ing to  law,  and  in  no  other  manner  the  prohibition  in  said 
section  four  thousand  two  hundred  and  nine  against  the  taking 
up  and  confining  such  animals  or  stock  in  any  private  inclosure, 
shall  have  no<  force  or  effect  in  such  city,  but  the  right  to  con- 
fine such  animals  or  stock  in  a  private  inclosure  shall  exist  as 
though  no  public  pound  had  been  provided.  [1880,  April  17: 
77  v.  311.] 


841a  THE  OHIO  MUNICIPAL  CODE. 


12.    Societies  to  Prevent  Cruelty. 

Sec.  3718  R.  S.  [Societies  may  appoint  agents  to  enforce 
law;  approval  of  appointment;  salary  of  agent.]  Such  asso- 
ciations1 may  appoint  agents  who  shall  be  residents  of  the 
county  or  municipality  for  which  the  appointment  is  made  for 
the  purpose  of  prosecuting  any  person  guilty  of  any  act  of  cru- 
elty to  persons  or  animals  within  this  state,  who  shall  have 
power  to  arrest  any  person  found  violating  any  of  the  provi- 
sions of  this  chapter,  or  any  other  law  for  the  purpose  of  pro- 
tecting persons  or  animals  or  preventing  any  act  of  cruelty 
thereto ;  and  upon  making  such  arrest,  such  agent  shall  convey 
the  person  so  arrested  before  some  court  or  magistrate  having 
jurisdiction  of  the  offense,  and  there  forthwith  make  complaint 
on  oath  or  affirmation,  of  the  offense ;  but  all  appointments  by 
such  associations  under  this  section  must  have  the  approval  of 
the  mayor  of  the  city  or  village  for  which  the  appointment  is 
made,  and  if  it  exists  outside  of  any  city  or  village  the  appoint- 
ment must  be  approved  by  the  probate  judge  of  the  county  for 
which  the  appointment  is  made,  and  the  mayor  or  probate 
judge  shall  keep  a  record  of  all  such  appointments;  provided 
that  upon  the  approval  of  the  appointment  of  any  such  agent 
or  agents  by  the  mayor  of  the  city  or  village,  the  council  of 
such  city  or  village  shall  pay  monthly  to  such  agent  or  agents, 
out  of  the  general  revenue  fund  of  such  city  or  village,  such 
salary  as  the  council  may  deem  just  and  reasonable ;  and  upon 
the  approval  of  the  appointment  of  any  such  agent  or  agents 
by  the  probate  judge  of  the  county,  the  county  commissioners 
shall  pay  monthly  to  such  agent  or  agents,  out  of  the  general 
revenue  fund  of  the  county,  such  salary  as  the  commissioners 
may  deem  just  and  reasonable ;  and  provided  further  that  the 
commissioners  and  the  council  of  any  such  city  or  village  may 
agree  upon  the  amount  each  shall  pay  such  agent  or  agents 
monthly,  and  the  amount  of  salary  to  be  paid  monthly  by  the 
council  of  any  such  village  to  any  such  agent  shall  not  be  less 
than  five  dollars,  by  the  council  of  any  such  city  not  less  than 
twenty  dollars,  and  by  the  commissioners  of  any  such  county 
not  less  than  twenty-five  dollars ;  provided  that  not  more  than 
one  agent  in  each  county  shall  receive  remuneration  from  the 
county  commissioners  under  the  provisions  of  this  section. 
[1906,  March  14,  98  v.  43 ;  81  v.  181 ;  72  v.  129.] 

(1)    This   refers  to  societies   for 
the  prevention  of  cruelty  to  animals. 


MISCELLANEOUS    STATUTES.  842 


13.    Soldiers  '  Monuments. 


Sec.  3107 — 19  R.  S.  [Townships,  cities,  etc.,  may  assist  in 
building  monuments;  bonds  therefor.]  Whenever  any  township, 
incorporated  village  or  city,  in  which  a  soldiers'  monumental 
building,  such  as  is  contemplated  in  the  act  to  which  this  is 
supplementary,  is  proposed  to  be  created  shall  desire  to  unite 
in  the  erection  of  such  building  for  township,  village,  or  city 
purposes,  each  such  township  shall  have  a  right  to  aid  and  as- 
sist in  the  same  to  an  amount  not  exceeding  twenty-five  thou- 
sand dollars,  and  each  city  or  incorporated  village,  to  an 
amount  not  exceeding  twenty-five  thousand  dollars,  and  to  issue 
bonds  therefor,  payable  in  ten  years  from  date  of  issue,  and 
bearing  interest  at  the  rate  of  eight  per  cent,  payable  semi- 
annually, on  the  first  days  of  July  and  January  in  each  year 
until  paid,  and  the  faith  and  credit  of  the  township,  village, 
or  city,  shall  be  pledged  for  the  full  and  faithful  payment  of 
the  principal  and  interest  upon  said  bonds,  when  and  as  the 
same  may  respectively  become  due  by  the  terms  of  said  bonds : 
provided,  that  any  party  uniting  with  the  trustees  of  any  fund 
described  in  the  act  to  which  this  is  supplementary,  shall  fur- 
nish an  amount  of  money  for  the  erection  of  said  building  equal 
at  least  to  the  amount  furnished  by  said  trustees  of  the  monu- 
mental fund.      [72  v.  60.] 

Sec.  3107 — 20  R.  S.  [Question  of  issuing  bonds  must  be  sub- 
mitted to  vote;  notice  to  be  given.]  No  bonds  shall  be  is- 
sued by  any  township,  city,  or  incorporated  village  under  the 
provision  of  this  act  until  the  question  of  issuing  the  same 
shall  have  been  first  submitted  to  a  vote  of  the  qualified  elect- 
ors of  the  township,  city,  or  incorporated  village,  and  a  major- 
ity of  such  qualified  electors  voting  at  the  election  shall  have 
voted  "  Monumental  aid,  Yes ;  "  and  such  election  may  be 
held  at  the  usual  place  of  holding  elections  in  said  city,  town- 
ship, or  incorporated  village,  at  any  time  after  ten  days'  no- 
tice of  the  time  and  place  of  holding  the  same  shall  have  been 
publicly  given  by  the  trustees  of  the  township,  or  council  of  the 
city  or  incorporated  village,  in  one  or  more  newspapers  of  the 
county  having  general  circulation  therein,  stating  also  the 
amount  of  the  bonds  proposed  to  be  issued,  the  rate  of  interest, 
the  purpose  for  which  issued,  and  the  time  of  payment,  and 
that  each  voter  shall  indorse  upon  his  ballot,  "  Monumental 
aid,  Yes,"  or  "Monumental  aid,  "No."  Said  election  shall  be 
conducted  in  all  respects  as  other  general  or  special  elections 
held  under  the  laws  of  this  state ;  and  the  :  asult  thereof 
certified  within  three  days  thereafter  by  the  proper  officers, 


843  THE    OHIO    MUNICIPAL    CODE. 

with  the  poll  books',  to  the  clerk  of  the  courts  of  the  county, 
as  is  required  in  cases  of  a  general  election.      [72  v.  60.] 

Sec.  3107 — 21  R.  S.  [Procedure  on  affirmative  votes.]  If  a 
majority  of  the  votes  cast  at  any  such  election  shall  be 
returned  as  cast  for  "  Monumental  aid,  Yes,"  then  it  shall  be 
the  duty  of  the  trustees  of  the  township  or  council  of  the  city 
or  incorporated  village,  or  both,  as  the  case  may  be,  forthwith 
on  the  certificate  of  the  clerk  of  the  court  to  that  effect  to 
issue  the  bonds  thereof  in  the  sum  specified  in  the  notice,  for 
the  election,  payable  in  [ten]  years  from  date,  with  interest  at 
the  rate  of  eight  per  cent,  per  annum,  payable  semi-annually, 
on  the  first  days  of  July  and  January,  at  the  place  of  issue, 
and  to  deliver  the  same  to  the  trustees  of  the  monumental 
building  fund,  provided  for  in  the  original  act  to  which  this 
is  supplementary,  and  to  take  their  receipt  or  that  of  their 
treasurer  therefor.      [72  v.  60.] 

Sec.  3107 — 22  R.  S.  [Duty  of  trustees  in  the  erection  of  mon- 
ument.] That  the  trustees  of  said  "  Monumental  building 
fund  "  upon  receiving  the  bonds  provided  for  in  the  preceding 
section,  shall  at  once  proceed  to  convert  the  same  into  money 
in  any  case  for  no  less  than  their  par  value,  and  proceed 
at  once  to  the  erection  of  the  monumental  building  provided 
for  by  the  act  to  which  this  is  supplementary,  and  also  provid- 
ing in  said  building  all  necessary  and  suitable  rooms  for  town- 
ship, city,  or  incorporated  village  purposes  provided,  that  in 
giving  notice  of  the  time,  manner,  and  purposes  of  election  as 
provided  in  the  second  section  [§(3107 — 20)]  of  this  act,  the 
number  and  character  of  rooms  required  for  township,  city  or 
village  purposes,  may  be  therein  described,  and  if  so  described, 
the  bonds  heretofore  described  shall  in  no  event  be  issued  or 
deliverd  until  the  trustees  of  said  monumntal  building  fund 
shall  have  given  bond  with  security  to  the  satisfaction  of  the 
probate  judge  of  the  county,  conditioned  for  the  speedy  and 
faithful  completion  of  rooms  in  said  building,  as  stipulated  in 
such  notice,  to  the  satisfaction  of  said  probate  judge,  and  the 
failure  to  so  do  will  subject  the  property  of  said  monumental 
building  association  to  all  damages  that  may  arise  from  such 
failure  as  well  as  to  liability  upon  bond  of  the  trustees  as 
aforesaid.      [72  v.  60.] 

Sec.  3107 — 23  R.  S.  [Levy  of  tax  for  principal  and  interest.] 
In  case  of  the  issue  and  delivery  of  bonds  as  aforesaid,  it 
shall  be  the  duty  of  the  trustees  of  the  township,  or  council  of  a 
city,  or  incorporated  village,  at  the  usual  time  for  levying  taxes, 
to  levy  a  tax  upon  all  the  taxable  property  of  such  township,  city, 


MISCELLANEOUS    STATUTES.  844 

or  village,  as  mil  be  sufficient  to  pay  the  interest  thereon  for  the 
current  year,  and  such  proportional  part  of  the  principal  for 
a  sinking  fund  as  will  be  sufficient  to  pay  off  the  same  when 
and  as  they  become  due,  and  this  shall  be  done  year  by  year 
until  the  whole  amount  of  principal  and  interest  is  fully  satis- 
fid,  paid  off  and  discharged.      [72  v.  60.] 

Sec.  3107—24  R.  S.  [Vote  to  be  taken  on  request  of  20  citi- 
zens.] The  vote  required  to  be  taken  by  this  act  shall 
be  taken  and  notice  therefor  given  as  herein  required  imme- 
diately upon  a  request  therefor  being  filed  with  the  trustees 
of  any  township,  or  council,  of  any  city  or  incorporated  village, 
for  ten  days,  by  twenty  citizens,  residents  and  tax-payers  of 
such  township,  city,  or  village,  and  notice  to  the  clerk  of  such 
township,  trustees,  or  council,  shall  be  equivalent  to  service  up- 
on the  trustees  or  council  themselves.      [72  v.  60.] 

14.     Timepiece  on  Public  Buildings. 

Sec.  4446 — 4  R.  S.  [Timepiece  in  or  upon  public  building  to 
keep  central  standard  time.]  Wherever  there  is  a  clock  or  oth- 
er timepiece  in  or  upon  a  public  building  within  this  state,  the 
same  being  maintained  at  the  public  expense,  it  shall  be  the 
duty  of  the  board  of  county  commissioners,  board  of  education, 
or  other  persons  having  control  and  charge  of  such  building,  to 
have  said  clock  or  other  timepiece  set  and  run  according  to  the 
standard  of  time  established  by  the  act  passed  March  22,  1893, 
entitled  "  An  act  to  establish  a  uniform  system  of  keeping  time 
throughout  the  state  of  Ohio."     [§(4446-3.)]      [92  v.  312.] 

15.     Trusts  fob  Educational  Purposes. 

Sec.  4105  R.  S.  [Board  of  education  to  have  control  and  man- 
agement of  property  held  in  trust  lor  educational  purposes,  etc.; 
tax  levy.]  The  custody,  management  and  administration  of  any 
and  all  estates  or  funds,  given  or  transferred  in  trust  to'  any 
municipality  for  the  promotion  of  education,  and  accepted  by 
the  council  thereof,  and  any  institution  for  the  promotion  of 
education  heretofore  or  hereafter  so  founded  other  than  a  uni- 
versity as  defined  by  this  act,  shall  be  committed  to,  and  exer- 
cised by,  the  board  of  education  of  the  school  district  including 
such  municipality,  and  such  board  of  education  shall  be  held 
the  representative  and  trustee  of  such  municipality  in  the  man- 
agement and  control  of  such  estates  and  funds  so  held  in  trust 
and  in  the  administration  of  such  institution,  excepting  always 


845  THE   OHIO    MUNICIPAL    CODE. 

such  funds  and  estates  held  by  any  municipality  which  are  used 
to  maintain  a  university  as  defined  by  this  act.  And  for  the 
uses  and  purposes  of  such  board  of  education  in  administering 
such  trusts,  the  council  of  such  municipality  may  annually  lev? 
taxes  on  all  the  taxable  property  of  such  municipal  corporation 
to  the  amount  of  three-tenths  of  one  mill  on  the  dollar  valuation 
thereof.1      [97  v.  544;  94  v.  241 ;  70  v.  117.] 

(1)    See    §217   of  the    code  and  Waddick  v.  Merrill,  26  C.  C.  437; 

sections   re-enacted   therein,   p.    485  5  C.  C.    (N.  S.)    103;  State  ex  rel. 

et  seq.  v.  Toledo,  26  C.  C.  628;  5  C.  C.  (N. 

See,  as  to  effect  of  this  section,  S.)  277. 

16      Voting  on  Submitted  Questions. 

Sec.  2996 — 1  R.  S.  [Majority  of  those  voting  on  a  question 
submitted  means  majority  of  all  voters  at  the  election.]  In  any 
and  all  cases  where  it  is  provided  by  statute  that  any  question 
shall  be  submitted  to  the  qualified  voters  of  any  township,  vil- 
lage, county  or  city  in  the  state  of  Ohio,  and  the  statute  so 
providing  is  silent  as  to  the  number  of  votes  necessary  to  author- 
ize the  performing  of  the  act  voted  upon,  such  statute  shall  be 
held  to  mean  that  a  majority  of  all  the  qualified  voters  voting  at 
said  election  must  vote  in  favor  thereof  in  order  to  authorize  the 
same.1      [90  v.  130.] 

(1)      Meaning     of     majority.—  But  where  the  majority  votes  cast 

Where    trustees    are    authorized    to  are  required  to  be  in  the  affirmative, 

make  a   special   levy  but  said  levy  "  majority    votes "    means   majority 

not  to  be  made  until  a  majority  of  of  votes  cast  on  the  question.     Dex- 

the    electors    of    said    township    at  ter  v.  Raine  et  al.,  18  B.  61    (aff'd 

some  regular  election,  shall  vote  in  18  B.  301).     See  also  State  ex  rel. 

favor    of   said   levy,    a   majority   of  v.  Amlin,  13  Dec.  334. 

votes    cast    is    required    and    not    a  And   a    majority    for   a   constitu- 

majority  voting  for  or  against  the  tional  amendment  is  a  majority  of 

levy.      Enyart  v.    Hanover   Tp.,   25  votes   cast   for   senators   and   repre- 

O.  S!  618.  sentatives.     State  v.  Foraker,  46  O. 

S.  677. 

Sec.  &996 — 2  R.  S.  [No  special  election  for  such  question  un- 
less act  so  provides;  proclamation.]  Unless  the  act  so  providing 
for  the  submitting  of  any  question  to  the  qualified  voters  of  any 
township,  county,  village  or  city  also  provides  for  the  calling 
of  a  special  election  for  that  purpose,  no  special  election  shall 
be  so  called,  and  the  question  so  to  be  voted  upon  shall  be  sub- 
mitted at  a  regular  election  in  such  township,  county,  village  or 
city,  and  notice  that  such  question  is  to  be  voted  upon  shall  be 
embodied  in  the  proclamation  for  such  election.      [90  v.  130.] 


APPENDIX 


i 

GOVERNOR'S  MESSAGE. 

Message  of  Hon.  George  K.  Nash,  Governor  of  Ohio,  to 
the  Extraordinary  Session  of  the  General  Assem- 
bly, August  25th,  1902. 

To  the  Seventy-fifth  General  Assembly: 

You  have  assembled  upon  the  proclamation  of  the  Governor.  It  is 
now  my  duty  to  state  to  you  the  purpose  for  which  you  have  been  con- 
vened. 

1.  On  the  12th  day  of  May,  1902,  a  bill  became  a  law,  entitled, 
"An  act  to  amend  section  6710  (as  amended  93  O.  L.  255),  of  the 
Revised  Statutes  of  Ohio."  Since  that  time  this  law  has  passed  under 
the  scrutiny  of  the  Supreme  Court  and  that  tribunal  found  that  it 
had  been  deprived  of  nearly  all  the  appellate  jurisdiction  formerly  pos- 
sessed by  it.  If  this  act  is  permitted  to  stand,  it  will  take  from  the 
people  the  right  to  have  a  large  percentage  of  their  civil  cases  reviewed 
on  error  by  the  highest  court.  I  am  informed,  and  I  am  constrained  to 
believe,  that  it  was  not  your  wish,  nor  your  intention,  to  do  this.  The 
error  should  be  remedied  as  speedily  as  possible.  I  therefore  recom- 
mend that  the  act  of  May  12th,  1902,  above  referred  to,  be  repealed,  and 
such  additional  legislation  had  as  is  necessary  to  restore  to  said  court  the 
jurisdiction  which  it  possessed  before  the  passage  of  said  act,  and  to 
restore  to  litigants  the  same  rights  they  would  have  had  if  said  act  had 
never   been   enacted. 

2.  During  the  last  days  of  June  the  Supreme  Court  of  the  State 
handed  down  several  decisions,  which  practically  deprive  our  munici- 
pal corporations  of  all  government.  It  is  apparent  that  this  is  an  ex- 
traordinary occasion  which  needs  a  remedy  at  the  earliest  possible  mo- 
ment. Constitutional  government  must  be  restored  to  our  cities  and 
villages.  The  labor  demanded  of  us  is  not  so  much  a  work  of  con- 
struction as  of  readjustment.  The  question  now  is,  not  what  we  think 
would  be  a  "  model "  municipal  government,  but  what  we  can  get,  con- 
sidering the  constitutional  limitations,  and  all  the  circumstances  sur- 
rounding us.  The  task  must  be  approached  with  a  spirit  of  "give  and 
take "    and    with    a    determination    to    accomplish    something   which    will 

847 


848  THE    OHIO    MUNICIPAL    CODE. 

bring  order  out  of  chaos.  It  is  time  enough  to  attempt  to  have  our 
favorite  ideas  in  regard  to  municipalities  incorporated  into  law  after 
order  has  been  restored  and  when  the  General  Assembly  has  ample 
time,  at  its  regular  session,  to  discuss  and  consider  them. 

Perhaps  it  will  be  beneficial  in  our  work  to  recall,  in  a  brief  way, 
the  history  of  municipalities  and  their  government  in  Ohio.  Under 
the  old  constitution,  the  General  Assembly  was  left  free  to  provide 
for  any  city  or  village  such  a  government  as  it  might  wish.  As  a  re- 
sult they  were  given  special  charters,  each  differing  from  the  other  in 
many  important  particulars.  Fifty  years  of  experience  demonstrated 
that  this  system  was  full  of  wrongs.  The  subject  was  carefully  con- 
sidered by  the  convention  which  made  the  constitution  of  1851.  The 
result  of  their  labors  was  article  13  of  that  constitution,  section  1  of 
which  provides,  "  The  General  Assembly  shall  pass  no  special  act  confer- 
ring corporate  powers,"  and  section  6  of  which  reads,  "  The  General  As- 
sembly shall  provide  for  the  organization  of  cities  and  incorporated  vil- 
lages by  general  laws,  and  restrict  their  power  of  taxation,  assessment, 
borrowing  money,  contracting  debts  and  loaning  their  credit,  so  as  to  pre- 
vent the  abuse  of  such  powers."  These  plain  words  indicate  that  the  in- 
tention of  the  constitution  is  to  command  the  General  Assembly  to  pro- 
vide for  the  government  of  cities  by  uniform  and  general  laws.  This 
command  was  fairly  well  obeyed  for  several  years.  Then,  what  seemed  to 
be  the  wants  and  demands  of  the  people  caused  a  resort  to  various  modes 
of  classification.  These  grew  to  be  absurd  in  their  character.  The  gov- 
ernment of  one  city  no  longer  resembled  the  government  of  another. 
We  were  again  in  the  midst  of  the  evils  that  existed  in  Ohio  prior  to 
1851.  This  transgression  of  the  law  of  the  constitution  could  not  last  for- 
ever.    A  crash  must  come,  and  it  did  come  in  June  of  this  year. 

In  doing  our  work  we  should  be  careful  to  stand  rigidly  by  the 
principles  of  the  constitution.  A  departure  from  this  course  would  make 
our  work  a  nullity  and  continue  indefinitely  the  confusion  which  now 
exists.  It  has  been  suggested,  by  very  respectable  people,  that  you  can 
authorize  the  citizens  of  municipalities  to  do  something  that  you  cannot 
do  yourselves;  that  you  may  empower  the  people  of  the  eight  hundred 
cities  and  villages  in  Ohio  to  assemble  in  constitutional  conventions,  and, 
each  for  itself,  adopt  a  charter  for  its  government.  The  result  would 
be,  as  many  schemes  for  the  government  of  cities  and  villages  as  there 
are  municipalities  in  the  state.  We  would  again  be  in  the  midst  of 
the  perils  which  surrounded  our  fathers  in  1851,  increased  ten-fold,  and 
tvould  utterly  disregard  the  command  of  our  highest  court,  which  says 
that  we  must  have  uniform  and  general  laws  for  our  government.  I 
therefore  recommend  that  no  heed  be  given  to  this   suggestion. 

It  is  my  duty  to  make  affirmative  reccommendation  to  you  in  regard 
to  this  work.  Such  recommendations,  to  be  helpful,  must  be  definite 
and  certain.  That  they  may  be  of  such  character,  I  have  devoted  much 
time,  thought  and  study  to  this  subject,  have  called  to  my  assistance 
skilled  and  learned  men,  and  have  prepared  with  their  help  a  bill  which 
contains  all  the  matters  and  restrictions  which  I  think  should  be  embraced 
at  this  time  in  a  law  for  the  government  of  our  cities  and  villages.     I 


APPENDIX.  849 

submit  the  bill  herewith,  and  hereby  specifically  recommend  that  all  parts 
of  said  bill,  and  the  bill  as  a  whole,  be  made  a  part  of  the  law  of  Ohio. 
If  there  are  things  in  this  bill  which  do  not  meet  your  approval,  you  will 
find  it  easy  to  make  amendments,  without  being  obliged  to  undergo  the 
work  of  preparing  a  bill  of  great  length.  The  subject  which  I  have 
discussed  herein  is  one  of  great  importance.  I  do  not  wish  unduly  to 
influence  your  judgments,  but  I  do  ask  that  you  give  it  most  careful 
and  thoughtful  consideration,  and  then  act  as  your  consciences  dictate. 

It  has  been  claimed  that  many  of  the  school  laws  of  the  state  are 
subject  to  the  objection  that  they  are  violative  of  the  provi  ;ons  of  the 
constitution.  This  may  be  true.  It  has  not,  however,  been  so  declared 
by  the  Supreme  Court.  When  this  is  done  it  is  time  to  seek  a  remedy. 
When  this  court  found  that  our  municipalities  were  built  upon  false 
foundations,  it  stayed  its  hand,  it  delayed  the  operation  of  its  decree, 
and  gave  us  plenty  of  time  to  meet  the  emergency.  We  can  safely  rely 
upon  this  court  to  protect  our  public  schools.  They  will  not  be  struck 
down  without  ample  opportunity  to  provide  for  the  contingency. 

The  Supreme  Court  in  its  recent  decisions  has  declared  certain  acts 
regulating  the  compensation  of  county  officers  to  be  unconstitutional. 
This  subject  does  not  need  your  immediate  consideration.  It  makes  but 
little  difference,  in  a  financial  way,-  to  the  people  whether  their  county 
officers  are  paid  under  the  fee  or  the  salary  system.  Therefore  this 
subject  can  be  safely  postponed  until  the  meeting  of  the  next  General 
Assembly. 

It  is  also  possible  that  there  are  imperfections  existing  in  the  regis- 
tration and  election  laws,  and  also  in  the  laws  relating  to  the  annual 
boards  for  the  equalization  of  the  valuation  of  property  for  taxation. 
I  suggest  that  by  joint  resolutions  you  refer  the  school  laws  to  the 
State  Commissioner  of  Common  Schools  and  the  Attorney  General;  the 
laws  relating  to  the  compensation  of  county  officers  to  the  Auditor  of 
State,  Secretary  of  State  and  the  Attorney  General;  the  laws  relating 
to  registration  and  elections  to  the  Secretary  of  State;  and  the  laws 
relating  to  annual  boards  of  equalization  to  the  Auditor  of  State,  with 
instructions  to  revise  and  recodify  said  laws,  remove  therefrom  all 
imperfections,  and  have  their  work  ready  for  presentation  to  the  next 
General  Assembly  of  Ohio,  on  the  first  Monday  in  January,  1904.  Th« 
officers  named  are  entirely  familiar  with  these  laws,  and  I  am  sure  they 
would  make  a  perfect  revision  of  the  same. 

I  most  earnestly  recommend  that  no  subject  of  legislation  be  con- 
sidered at  this  extraordinary  session  of  the  General  Assembly,  except 
those    herein    suggested. 

Respectfully  submitted, 

Geo.  K.  Nash. 

Columbus,  O.,   August  25,    1902. 


II 

POPULATION    OF    MUNICIPAL    CORPOR 
ATIONS  OF  OHIO. 


As    SHOWN    BY    THE    FEDERAL    CENSUS    OF    1900. 

Proclamation  of  the   Secretary  of  State  in  compliance   with 
Section  2  of  the  Municipal  Code,  passed  October  22,  1902. 

In  compliance  with  the  provisions  of  Section  2  of  an  act  of  the 
General  Assembly  of  Ohio  entitled  "An  act  to  provide  for  the  organization 
of  cities  and  incorporated  villages,  and  to  restrict  their  power  of  taxation, 
assessment,  borrowing  money,  contracting  debts,  and  loaning  their  credit, 
so  as  to  prevent  the  abuse  of  such  powers,  as  required  by  the  constitution 
of  Ohio,  and  to  repeal  all  sections  of  the  Revised  Statutes  inconsistent 
herewith,"  passed  October  22,  1902,  I,  Lewis  C.  Laylin,  Secretary  of 
State  of  the  State  of  Ohio,  do  proclaim  that  the  municipal  corporations 
of  Ohio  which  had  a  population  of  five  thousand  or  over  by  the  Federal 
Census  of  1900,  together  with  the  population  of  said  corporations,  as 
shown  by  said  census,  are  as  follows: 


Name. 

County. 

Population, 
1900. 

Akron   

Summit    

Stark    ; 

42,728 

Alliance    

8,974 

Ashtabula    

Ashtabula    

Belmont 

12,949 

Bellaire    .                             

9,912 
6,649 
5,067 

Bellefontaine  

Logan    

Bowling  Green   

Wood   

Bucyrus    

Crawford 

6,560 

Cambridge   

Guernsey    

Tuscarawas   

8,241 

Canal    Dover     

5,422 

Canton    

Stark    

Ross    

Hamilton    

Pickaway    

Cuyahoga    . 

30,667 
12,976 

Chillicothe 

Cincinnati    

Circleville    

325,902 

6,991 

381,768 

Cleveland   

Columbus  

Franklin 

125,560 

Conneaut    

Ashtabula    

Coshocton    

Montgomery    

Defiance    

7,133 
6,473 

Coshocton     

Dayton    

85,333 
7,579 

Defiance    

Delaware     

7,940 
16,485 

East  Liverpool    

Columbiana    

Lorain    

Elyria     

8,791 

850 


APPENDIX. 


851 


Name. 


Findlay     

Fostoria    

Fremont 

Galion     

Gallipolis 

Glenville     

Greenville    

Hamilton   

Ironton     

Kenton   

Lancaster 

Lima 

Lorain    

Mansfield   

Marietta     

Marion    

Martins  Ferry  .  . . 

Massillon    

Middletown    

Mt  Vernon    

Nelsonville     

Newark     

Newburg    

New   Philadelphia 

Niles    

Norwalk 

Norwood     

Painesville 

Piqua    

Portsmouth    

St.   Marys    

Salem    

Sandusky   

Sidney     

Springfield 

Steubenville 

Tiffin   

Toledo     

Troy    

Urbana   

Van  Wert 

Warren 

Washington  C.  H. 

Wellston     

Wellsville     

Wooster    

Xenia    

Youngstown 
Zanesville     ...... 


County. 


Hancock    .  .  . 
Seneca 
Sandusky     . 
Crawford    .  . 

Gallia    

Cuyahoga    . 

Darke    

Butler    

Lawrence  .  . 
Hardin  .  .  . 
Fairfield    .  . 

Allen     

Lorain 
Richland     .  . 
Washington 

Marion  

Belmont    .  .  . 

Stark     

Butler    

Knox     

Athens 
Licking 
Cuyahoga   .  . 
Tuscarawas 
Trumbull    .  . 
Huron    .... 
Hamilton    . . 

Lake    

Miami  .... 
Scioto 

Auglaize  .  . 
Columbiana 

Erie 

Shelby  

Clark    

Jefferson    .  . 
Seneca 
Lucas 
Miami 
Champaign 
Van  Wert 
Trumbull    . 
Fayette    .  . . 
Jackson    .  . 
Columbiana 
Wayne    .  .  . 
Greene    .  .  . 
Mahoning 
Muskingum 


Population, 
1900. 


17,613 

7,730 

8,439 

7,282 

5,432 

5,588 

5,501 

23,914 

11.868 

6,852 

8,991 

21,723 

16,028 

17,640 

13,348 

11,862 

7,760 

11,944 

9,215 

6,633 

5,421 

18,157 

5,909 

6,213 

7,468 

7,074 

6,480 

5,024 

12,172 

17,870 

5,359 

7,582 

19,664 

5,688 

38,253 

14,349 

10,989 

131,822 

5,881 

6,808 

6,422 

8,529 

5,751 

8,045 

6,146 

6,063 

8,696 

44,885 

23,538 


852 


THE    OHIO    MUNICIPAL    CODE. 


1  do  further  proclaim  that  the  municipal  corporations  of  Ohio  which 
had  a  population  of  less  than  five  thousand  by  the  Federal  Census  of  1900, 
together  with  the  population  of  such  corporations,  as  shown  by  said  census, 
are   as  follows: 


Name. 


Aberdeen    

Ada   

Adamsville    

Addyson  

Adelphi     

Albany 

Alexandria     

Alger     

Allentown    

Alvordton     

Andover    

Anna   

Amelia    

Amesville 

Ansonia    

Antioch     

Antwerp   

Applecreek 

Arcadia    

Arcanum    

Archbold    

Arlington 

Arlington  Heights. 

Arnettsville   

Ashland    

Ashley    

Asheville     

Athalia .   

Athens    

Attica     

Bainbridge 

Bairdstown    

Baltimore    

Barbertown    

Barnesville    

Barnhill    

Batavia    

Batesville 

Bay   

Beach  City 

Beallsville    

Beaver    

Beaver  Dam    

Bedford    

Bellebrook    

Belle  Center    

Belleville    

Bellevue    

Belmont    

Belmore    


County. 


Brown    

Hardin    

Muskingum    

Hamilton 

Ross    

Athens    

Licking     

Hardin    -.. 

Allen    

Williams    

Ashtabula    

Shelby     

Clermont    

Athens    

Darke    

Monroe    

Paulding    

Wayne     

Hancock    

Darke    

Fulton    

Hancock     

Hamilton     

Greene    

Ashland    

Delaware    

Pickaway    

Lawrence    

Athens     

Seneca    

Ross    

Wood     

Fairfield    

Summit    

Belmont     

Tuscarawas    

Clermont    

Noble 

Cuyahoga    

Stark    

Monroe   

Pike    

Allen     

Cuyahoga    

Greene     

Logan     

Richland 

Huron  and  Sandusky 

Belmont    

Putnam    


Population, 
1900. 


711 
2,576 
201 
1,513 
516 
548 
420 
462 
123 
482 
815 
451 


676 
212 

1,206 
387 
425 

1,225 
958 
738 
360 
157 

4,087 
700 
654 
346 

3,066 
694 
954 
298 
460 

4,354 

3,721 
811 

1,029 
312 

364 

554 

262 

477 

1,486 

352 

962 

1,039 

4,101 

422 

334 


Population  not  given  in  census. 


APPENDIX. 


853 


Name. 


Belpre     

Beloit   

Benton  Ridge   .  . . 

Berea    

Berlin  Heights   .  . 

Bethel 

Bettsville   

Beverly 

Blakeslee    

Blake's  Mills 

Blanchester    

Bloomdale    

Bloomingburg   .  .  . 

P'oomville    

Bluffton    

Bond  Hill    

Boston    

Botkins    

Bourneville    

Bowerstown 

Boliver    

Bowersville    

Bradford    

Bradner    

Bremen     

Bridgeport 

Brilliant     

Brink  Haven    .  . . 

Brookside     

Brookville    

Braughton   

Bryan   

Buckeye  City  .... 

Buckland    

Burbank   

Burton    

Butler     

Butlerville   

Bloomfield    

Byesville    

Cadiz    

Calais   

Caldwell     

Caledonia 

Camden    

Canal  Fulton    .  . . 
Canal  Winchester 

Canfield    

Cannelville     

Cardington    

Carey    

Carlisle    

Carroll    

Carrollton    

Carthage    


County. 


Washington 
Mahoning  . 
Hancock  . . 
Cuyahoga     . 

Erie    

Clermont  . . 
Seneca  .... 
Washington 
Williams  .  . 
Tuscarawas 
Clinton 

Wood     

Fayette  .  .  . 
Seneca 

Allen 

Hamilton  .  , 
Clermont  ,  . 
Shelby     .... 

Ross    

Harrison     .  . 

Tuscarawas 

Greene 

Miami 

Wood    

Fairfield  .  . 
Belmont  .  . . 
Jefferson     .  . 

Knox     

Belmont  .  . . 
Montgomery 
Paulding  .  . 
Williams    . . 

Knox     

Auglaize  .  . . 
Wayne  .... 
Geauga  .  . . 
Harrison  .  . 
Warren 
Jefferson  .  . 
Guernsey  .  . 
Harrison  .  . 
Monroe    .... 

Xoble    

Marion 

Preble     

Stark 

Franklin  .  . 
Mahoning  . 
Muskingum 
Morrow  .  .  . 
Wyandot  .  . 
Lorain  .... 
Fairfield  .  . . 
Carroll  .... 
Hamilton     . 


Population, 
1900. 


359 
2,500 
625 
850 
492 
712 

239 

• 

1,788 
740 
636 
819 
1,783 
1,081 
260 
420 
356 

526 

* 

370 

1,254 

1,148 

466 

3,963 

646 

250 

249 

869 

226 

3,131 

247 

* 

325 

727 
567 
125 

1,267 

1,755 

114 

927 

682 

905 

1,172 

662 

672 

281 

1,354 

1,816 

164 

223 

1,271 

2,559 


Population  not  given  in  census. 


854 


THE    OHIO    MUNICIPAL    CODE. 


Name. 


Casstown 

Catawba  . ." 

Cecil    

Cedarville    

Celina 

Centerburg     

Centerville     

Chagrin  Falls 
Chambersburg  .... 

Chardon    

Chatfield    

Chester  Hill    

Chesterville   

Chicago  Junction   . 

Chickasaw    

Clarington   

Clarksburg     

Clarksville     

Cleveland    Heights 

Cleves   

Clifton    

Clinton  

Cloverdale    

Clyde    

Coalgrove 

Coalton     

Coldwater    

College    Corner    .  . 

College  Hill 

Collinwood     

Columbiana     

Columbus    Grove    . 
Commercial  Point 

Congress     

Continental    

Convoy   

Coolville     

Copley    

Corning    

Cortland     

Corwin 

Covington    ....... 

Crestline    

Creston     

Cridersville    

Crooksville     

Crown  City   

Cumberland 

Custar    

Cuyahoga  Falls    .  . 

Cygnet    

Dalton    

Danville   

Darbyville    

Deavertown    


Miami     .... 

Clark    

Paulding  .  . 
Greene  .... 
Mercer    .... 

Knox     

Montgomery 
Cuyahoga 

Gallia     

Geauga  .  .  . 
Crawford  .  . 
Hamilton  . . 
Morrow  .  .  . 
Huron  .... 
Mercer  .... 
Monroe 

Ross 

Clinton 


County. 


Hamilton   .  . 
Hamilton    .  . 
Huron 
Putnam     .  .  . 
Sandusky     . 
Lawrence    .  . 
Jackson    .  .  . 
Mercer 
Preble 
Hamilton    . 
Cuyahoga     . 
Columbiana 
Putnam    .  .  . 
Pickaway     . 
Wayne 
Putnam     .  .  . 
Van  Wert    . 
Athens 
Summit    .  .  . 

Perry     

Trumbull     . 
Warren     .  .  . 
Miami 
Crawford     . 
Wayne    .  . . 
Auglaifce     . 

Perry    

Gallia 
Guernsey    . 

Wood    

Summit  .  . 
Wood  .... 
Wayne 

Knox 

Pickaway  . 
Morgan  . .  . 


Population, 
1900. 


262 
231 
326 

1,189 

2,815 
706 
198 

1,586 
169 

1,360 
298 
480 
230 

2,348 
310 
905 
551 

465 

* 

1,328 
262 

186 

» 

2,515 

1,191 

1,625 

627 

378 

1,104 

3,639 

1,339 

1,935 

245 

198 

1,104 

690 

315 

243 

1,401 

620 

131 

1,791 

3,282 

893 

581 

835 

284 

618 

293 

3,186 

896 

666 

298 

250 

154 


*  Population  not  given  in  census. 


APPENDIX. 


855 


Name. 


Deerfield    

Deersville     .... 

Degraff 

Delhi     

Delroy     

Delphos    

Delta     

Dennison    

Deshler 

Dexter  City  . . 
Dillonvale  .... 
Donaldsville  .  . 
Doylestown    . .  . 

Dresden    

Dublin    

Duncan's  Falls 

Dunkirk   

Dupont   

East  Cleveland 
East  Palestine 

Eaton    

Edgerton    

Edison    

Edon 

Eldorado    

Elgin    

Elida     

Elmore    

Elmwood  Place 

Empire   

Enon     

Evanston    

Fairfield 

Fairpoint 

Fairport 

Fairview     

Farmersville    . . 

Fayette    

Fayetteville  .  .  . 

Felicity     

Fernbank    

Five  Points   . .  . 

Fletcher    

Florida 

Flushing    

Forest 

Fort  Jennings  . 
Fort.  Recovery  . 

Frankfort    

Franklin    

Frazeysburg    .  . 

Fredericksburg 

Fredericktown 

Freeport  

Freeport  


County. 


Portage    

Harrison     

Logan    

Hamilton    

Carroll    

Van  Wert  and  Allen. 

Fulton    

Tuscarawas    

Henry   

Noble    

Jefferson 

Clark    

Wayne    

Muskingum    

Franklin    

Muskingum    

Hardin    

Putnam    

Cuyahoga     

Columbiana    

Preble    

Williams    

Morrow    

Williams    

Preble     

Van  Wert   

Allen     

Ottawa     

Hamilton    

Jefferson     

Clark    

Hamilton    

Greene    

Pickaway    

Lake,  . . . . '. 

Guernsey  

Montgomery    

Fulton     

Brown   

Clermont 

Hampton    

Pickaway    

Miami   

Henry     

Belmont    

Hardin     

Putnam     

Mercer    , 

Ross     

Warren 

Muskingum    

Wayne    

Knox    , 

Harrison     

Wood    


Population, 
1900. 


484 

256 

1,150 

829 

400 

4,517 

1,230 

3,763 

1,628 

278 

« 

200 
1,057 
1,600 

275 

» 

1,222 

370 

2,757 

2,493 

3,155 

1,043 

347 

740 

358 

208 

440 

1,025 

2,532 

* 

295 

1,716 

312 

• 

2,073 
291 
440 
886 
323 
695 
310 
176 
375 
276 
653 

1,155 
322 

1,097 
717 

2,724 
730 
511 
890 
690 
815 


*  Population  not  given  in  census. 


856 


THE    OHIO    MUNICIPAL    CODE. 


Name. 


Gahanna     

Gambier   

Garrettsville    .  . . 

Geneva    

Genoa    

Georgetown  .... 
Germantown  .  . . 
Gettysburg  .... 
Gibsonburg  .... 
Gilboa     ....'.... 

Girard    

Gaun 

Geyer    

Glandorf    

Glendale     ...... 

Glenmont 

Glouster 

Gnadenhutten    .  . 

Gordon    

Grafton    

Grand    Rapids    . 

Granville    

Graysville    

Greencamp     .... 

Greenfield    

Green  Spring    .  . 

Greenwich    

Grove  City 

Groveport    

Grover    

Grover  Hill  .... 

Hamden    

Hamersville     .  . . 

Hamler     

Hanging  Rock  .  . 

Hanover   

Hanoverton 
Harlem    Springs 
Harrisburg 

Harrison    

Harrisville 

Harrod    

Haitford    

Hartwell    

Harveysburg    . .  . 

Haskins    

Haviland    

Hayesville    .... 

Hebron   

Hemlock 

Hicksville     

Higginsport 

Hilliard    

Hillsboro    

Hiram     


County. 


Franklin    

Knox   

Portage 

Ashtabula    

Ottawa    

Brown 

Montgomery    

Darke    

Sandusky    

Putnam    

Trumbull 

Knox 

Auglaize 

Putnam    

Hamilton    

Holmes    , 

Athens    

Tuscarawas    

Darke    

Lorain    

Wood    

Licking    

Monroe   

Marion    

Highland     

Seneca  and  Sandusky 

Huron    

Franklin    

Franklin     


Paulding    .  . 
Vinton 
Brown    .... 

Henry    

Lawrence  .  . 
Licking 
Columbiana 
Carroll 
Franklin  .  . 
Hamilton  .  . 
Harrison    .  . 

Allen 

Licking  . .  . 
Hamilton  .  . 
Warren 

Wood    

Paulding  .  . 
Ashland  .  . . 
Licking    .  .  . 

Perry    

Defiance    .  .  . 
Brown    .... 
Franklin    .  . 
Highland    . 
Portage    .  .  . 


Population, 
1900. 


276 

751 
1,145 
2,342 

824 
1,529 
1,702 

246 
1,791 

346 
2,630 


749 
1,545 

209 
2,155 

547 

1,098 
549 

1,425 
174 
369 

3,979 
816 
849 
656 
519 
308 
655 
838 
242 
574 
665 
314 

399 

# 

247 

1,456 
250 
370 
414 

1,833 
435 
449 
186 
332 
455 
581 

2,520 
650 
376 

4,535 
659 


*  Population  not  given  in  census. 


APPENDIX. 


857 


Name. 


Holgate    

Hollansburg    

Holmesville    

Holmes  City   

Hopedale    

Hoytsville    

Hubbard     

Hudson     

Huntsville    

Huntersville    

Huron 

Hyde  Park    

Irondale     

Independence     

Ithica    

Jackson    

Jacksonboro     

Jackson  Center 

Jacksonville     

Jamestown     

Jefferson    

Jeffersonville    

Jenera    

Jeromeville    

Jerry  City 

Jerusalem    

Jewett    

Johnstown    

Junction  City 

Kalida    

Kelley's  Island 

Kennedy  Heights 

Kent   

Kettlerville    

Killbuck 

Kimbalton   

Kingston     

Kirby    

Kossuth    

Lafayette 

La  Grange    

Lakeview    

Lakewood     

La  Rue 

Latty    

Laura    

Laurelville 

Lebanon    

Leesburg    

Leesville 

Leesville  Cross  Roads 

Leetonia 

Leipsic    

Lewisburg 

Lewisville    


County. 


Henry 

Darke     

Holmes 
Hamilton    .  . 
Harrison    .  . 

Wood    

Trumbull    .  . 
Summit 

Logan    

Miami   

Erie    

Hamilton    .  . 
Jefferson 
Cuyahoga   .  . 

Darke    

Jackson     .  .  . 

Butler    

Shelby  .... 
Athens 
Greene  .... 
Ashtabula  . 
Fayette 
Hancock  .  .  . 
Ashland    .  .  . 

Wood     

Monroe 
Harrison 
Licking 
Perry    ..... 
Putnam 

Erie 

Hamilton    .  . 
Portage     .  .  . 
Shelby    .... 
Holmes 
Guernsey    .  . 

Ross    

Wyandot    .  . 
Auglaize  . .  . 

Allen   

Lorain 

Cuyahoga  . 
Cuyahoga  .  . 
Marion 
Paulding  .  . 
Miami  .... 
Hocking  . . . 
Warren  .  .  . 
Highland  .  . 
Carroll  .... 
Crawford  .  . 
Columbiana 
Putnam     .  . . 

Preble   

Monroe    .  .  . 


Population, 
1900. 


1,237 
275 
304 
868 
365 
431 

1,230 
983 
408 

1,708 
1,691 
1,136 

113 

4,672 

77 

644 

1,047 

1,205 

1,319 
790 
237 
308 
555 
245 
743 
638 
443 
622 

1,174 
209 

4,541 
145 
370 
245 
735 
187 
153 
316 
528 
553 

3,355 
997 
444 
378 
450 

2,867 
783 
269 
178 

2,744 

1,726 
560 
170 


*  Population  not  given  in  census. 


858 


THE    OHIO    MUNICIPAL    CODE. 


Name. 


Lexington    

Liberty    Center    . 

Limaville   

Linndale     

Lindsey    

Lisbon     

Lithopolis    

Little  Sandusky  . 

Lockington     

Lockbourne  

Lockland    

Lodi    

Logan    

London  

Loramie    

Loudon  ville   

Louisville     

Loveland    

Lowell     

Lowellville     

Lower  Salem 

Lucas    

Lynchburg   

Lyons    

McArthur     

McClure    

McComb   

McConnelsville    .  . 

McGuffey    

Maeksburg 

Madison    

Madisonville 
Magnetic  Springs 

Magnolia    

Maineville    

Malinta     

Malta    . .  . .- 

Malvern    

Manchester    

Mantua     

Marble  Cliff 

Marblehead    

Marengo     

Marice  City 

Marseilles    

Marshallville     .  .  . 

Martinsburg 

Martinsville 

Marysville    

Mason 

Maumee    

Mechanicsburg    . 

Medina   

Mielrose    

Mendon    


County. 


Richland 

Henry    

Stark    

Cuyahoga  

Sandusky   

Columbiana    

Fairfield    

Wyandot    

Shelby     

Franklin    

Hamilton    

Medina   

Hocking   

Madison     

Shelby     

Ashland    

Stark   

Clermont  and  Warren 

Washington    

Mahoning 

Washington    

Richland    

Highland    

Fulton 

Vinton    

Henry   

Hancock   , 

MIorgan    

Hardin    

Washington    

Lake    

Hamilton    

Union    

Stark    

Warren     

Henry     

Morgan     

Carroll    

Adams    

Portage    

Franklin     

Ottawa    

Jefferson    

Putnam     

Wyandot    

Wayne    

Knox    

Clinton     

Union    

Warren     

Lucas    

Champaign    

Medina    

Paulding    

Mercer    


Population, 
1900. 


448 
606 
156 

» 

614 

3,330 

358 

181 

210 

# 

2,695 

846 

3,480 

3,511 

444 

1,581 

1,374 

1,260 

381 

1,137 

190 

306 

907 

* 

941 
660 

1,195 

1,825 
452 
448 
768 

3,140 
194 
431 
288 
357 
845 
709* 

2,003 

743 

# 

997 
242 

* 

251 

357 

238 

338 

3,048 

629 

1,856 

1,617 

2,232 

383 

599 


*  Population  not  given  in  census. 


APPENDIX. 


859 


Name. 


County. 


Population, 
1900. 


Mentor    

Metamora    

Miamisburg 

Middlepoint     .... 

Middleport    

Middleburg    

Midland    

Midvale    

Midway    

Mifilin 

Milan    

Milford     

Milford  Center   . . 

Milbury     

Milledgeville    .... 

Miller  City   

Millersburg    

Milton  Center  .  . . 
Miltonsburg     .... 

Milton    

Mineral  City  .  .  . 
Mineral   Ridge    .  . 

Minerva    

Mingo  Junction    . 

Minster     

Monroeville    

Montezuma    

Montpelier     

Morristown    

Morrow    

Moscow     

Mt.    Airy     

Mt.    Blanchard    .  . 

Mt.  Cory   

Mt.  Eaton   

Mt.  Gilead 

Mt.    Healthy     ... 

Mt.  Oreb    

Mt.  Pleasant  .  . . 
Mt.  Sterling  .  . . 
Mt.  Victory  .... 
Mt.  Washington  . 
Murray    City    .  . . 

Mutual     

Napoleon    

Nashville    

Navarre    ........ 

Nevada     

Neville    

New  Albany  .... 
New  Alexandria  . 
New  Athens  .... 
New  Bloomington 
New  Bremen  .  . . 
New   Carlisle    .  .  . 


Lake    

Fulton 

Montgomery    .... 

Van  Wert    

Meigs    

Logan     

Clinton     

Tuscarawas    

Guernsey    

Ashland    

Erie     

Clermont    

Union    

Wood    

Fayette     

Putnam     

Holmes 

Wood    

Monroe   , 

Mahoning 

Tuscarawas    ...... 

Trumbull    

Carroll  and  Stark 

Jefferson     

Auglaize     

Huron  

Mercer    , 

Williams    

Belmont 

Warren     

Clermont    

Hamilton 

Hancock    

Hancock    

Wayne    

Morrow     

Hamilton    

Brown     

Jefferson     ....... 

Madison 

Hardin    

Hamilton    

Hocking    

Champaign     

Henry   

Holmes   

Stark    

Wyandot    

Clermont    

Franklin     

Jefferson     

Harrison    

Marion    

Auglaize 

Clark    


624 

263 

3,941 

604 

2,799 

* 

338 
491 
274 
185 
653 

1,149 
682 
284 
201 
163 

1,998 
325 

130 

* 

1,220 

831 

1,200 

2,954 

1,465 

1,211 

317 

1,869 

350 

869 

475 

400 

456. 

312 

232 

1,528 

1,354 

561 

626 

986 

734 

781 

1,118 

163 

3,639 

766 

963 

889 

265 

224 

* 

435 

399 

1,318 

995 


*  Population  not  given  in  census. 


860 


THE    OHIO    MUNICIPAL    CODE. 


Name. 


New  Comerstown 
New  Concord  .  . . 
New  Waterford  . 
New  Holland 
New  Knoxville  .  . 
New  Lebanon  .  .  . 
New  liebanon  .  . . 
New  Lexington  . 
New  Lexington  . 
New  London 
New  Madison  .  .  . 
New  Matamoras 

New  Paris   

New  Petersburg   . 
New  Richmond  .  . 

New  Riegel    

New  Salem    

New  Straitsville  . 

New  Vienna 

New  Washington 
Newton  Falls    .  . . 

Ney   

North  Amherst  .  . 
North  Baltimore 

North  Bend 

North  Lewisburg 
North  Robinson   . 

Norwich    

Nottingham 

Oak  Harbor 

Oak  Hill    

Oakley    

Oakwood    

Oberlin   

Ohio   City    

Olmsted  Falls  .  . . 

O^angeville    

Orville    

Osborn    

Osgood    

Osnaburg   

Ostrander     

Ottawa    

Ottoville     

Otwa   

Oxford    

Palestine    

Pandora    

Pataskala     

Patterson     

Paulding 

Payne   

Patriot    

Peebles    

Pemberville    


Tuscarawas    

Muskingum    

Columbiana   

PicKaway  and  Fayette 

Auglaize 

Montgomery 

Miami   

Highland    

Perry    

Huron 

Darke    , 

Washington    

Preble  

Highland    

Clermont    , 

Seneca 

Fairfield   

Perry    

Clinton    

Crawford    

Trumbull    

Defiance    

Lorain     

Wood    

Hamilton    

Champaign     

Crawford    

Muskingum    

Cuyahog  i, 

Ottawa   

Jackson    

Hamilton    

Paulding    

Lorain    

Van  Wert    

Cuyahoga   

Trumbull    

Wayne    

Greene    

Darke    

Stark    

Delaware    

Putnam    

Putnam    

Scioto    

Butler 

Pickaway   

Putnam    

Licking     

Hardin    .  # 

Paulding    

Paulding    

Gallia   

Adams    

Wood    


Population, 
1900. 


2,659 
675 

692 
436 
145 
224 
265 
1,701 
1,180 
590 
817 

790 

* 

1,916 
298 
180 

2,302 
805 
824 
732 
289 

1,758 

3,561 
532 
846 
200 
253 
939 

1,631 
825 
528 
342 

4,082 
862 

330 

* 

1,901 
948 
224 
558 
401 

2,322 
369 
274 

2,009 
210 
409 
675 
219 

2,080 

1,336 

* 

763 

1,081 


Population  not  given  in  census. 


APPENDIX. 


861 


Name. 


Peninsula     

Perrysburg     

Perrysville     

Phillipsburg 
Pickerington 

Piketcn     

Pioneer 

Plain    City    

Plainfield    '. 

Pleasant  City  .  .  . 
Pleasant  Hill  .  .  . 
Pleasant  Ridge  . 
Pleasantville     .  .  . 

Plymouth     . 

Poland    

Polk    

Pomeroy 

Portage    ........ 

Port  Clinton 

Port  Jefferson  .  .  . 
Port  Washington 
Port  William   .  .  . 

Proetorville   

Prospect   

Put-in-Bay 

Quaker  City 

Quincy    

Racine    

Rarden   

Ravenna   

Rawson     

Reading    

Rendville    

Republic     

Reynoldsburg    .  .  . 

Richmond     

Richmond     

Richwood   

Ridgeway 

Ripley     

Rising  Sun    

Riverside    

Rochester 

Rockcreek    

Rockford    

Rockport    

Rocky  Ridge  . .  . 
Rocky    River     .  . . 

Rogers    

Rome    

Roseville    

Rossville    

Rushsylvania     .  . . 

Rushville    

Russellville    


County. 


Summit    

Wood    . . 

Ashland    

Montgomery    

Fairfield 

Pike    

Williams    

Madison  and   Union 

Coshocton     

Guernsey    

Miami 

Hamilton    

Fairfield 

Richland  and  Huron 

Mahoning 

Ashland    

Meigs    

Wood    

Ottawa   

Shelby     

Tuscarawas    

Clinton   

Lawrence    

Marion    

Ottawa   

Guernsey    

Logan     

Meigs    

Scioto    

Portage     

Hancock    

Hamilton    

Perry    

Seneca     , 

Franklin     

Jefferson     

Lake 

Union    

Hardin   and  Logan .  . 

Brown     

Wood     

Hamilton    , 

Lorain     

Ashtabula     

Cuyahoga  

Cuyahoga   , 

Ottawa   

Cuyahoga  

Columbiana    

Adams     

viuskingum    

Darke    

Logan    

Fairfield   

Brown     


Population, 
1900. 


579 
1,766 

513 

* 

263 
625 
603 

1,432 
255 

1,006 
557 
953 
501 

1,154 
370 
232 

4,639 
546 

2,450 
355 
424 
200 
523 
983 
317 
878 
642 
327 
443 

4,003 
473 

3,076 
790 
656 
339 
373 
332 

1,640 
447 

2,248 

660 

* 

167 

478 
1,207 
2,038 

414 
1,319 

287 

1,207 
251 
552 
257 
394 


*  Population  not  given  in  census. 


862 


THE    OHIO    MUNICIPAL    CODE. 


Name. 


Sabina    

St.  Bernard 

St.  Clairsville  .  . . 

St.  Henry 

St.   John    

St.  Louisville    .  . . 

St.    Paris    

Salesville    

Salineville    

Sarahsville    

Savannah   

Scio 

Sciotoville    

Scott     

Sebring     

Senecaville 

Seven   Mile    

Seville    

Shanes   Crossing 

Shanesville    

Shawnee 

Shelby 

Sherrodsville 

Sherwood   

Shiloh   

Shreve     

Sinking  Spring  .  . 

Smithfield    

Smithville    

Somerset    

Somerville    

South  Bloomfield 
South  Brooklyn  . 
South  Charleston 

South  Point 

South  Solon 
South  Salem 
South  Webster   .  . 
South   Zanesville 

Sparta     

Spencerville 

Springboro     

Spring  Hills 
Spring  Valley  .  . . 

Stockport     

Strasburg 

Struthers   

Stryker     

Sugar    Creek     . . . 
Sugar  Grove 
Summerfield 
Summerford 

Sunbury  

Swanton   

Sycamore   


County. 


Clinton     

Hamilton    

Belmont   

Mercer    

Auglaize   

Licking 

Champaign     

Guernsey    

Columbiana   

Noble    

Ashland    

Harrison    

Scioto 

Van  Wert  and  Paulding 

Mahoning 

Guernsey    

Butler   

Medina    

Mercer    

Tuscarawas    

Perry    

Richland    

Carroll    

Defiance    

Richland    

Wayne    

Highland    

Jefferson     

Wayne    

Perry    

Butler 

Pickaway   

Cuyahoga    

Clark    

Lawrence    

Madisr      

R03S     

Scioto    

Muskingum    

Morrow    

Allen     

Warren     

Champaign     

Greene    

Morgan 

Stark    

Mahoning 

Williams    

Tuscarawas  • 

Fairfield     

Noble    

Madison 

Delaware    

Fulton    

iWyandot    


Population, 
1900. 


1,481 
3,384 
1,210 


285 
1,222 

286 
2,353 

279 

290 

1,214 

* 

547 

387 
623 
256 
602 


2,966 

4,685 

926 

455 

597 

1,043 

238 

503 

474 

1,124 

300 

223 

2,343 

1,096 

281 

319 

264 

445 

215 
1,874 
433 
157 
522 
376 
461 

1,206 

# 

350 
511 

464 

887 
853 


*  Population  not  given  in  census. 


APPENDIX. 


863 


Name. 


Sylvania    

Syracuse    

Tarlton     

Taylorsville 

Terrace  Park 

Thorn    

Tippecanoe    

Tiro     

Thornville    

Tontagany 

Toronto    

Trenton    

Trotwood    

Trimble    

Tuscarawas    

Uhrichsville    

Union  City   

Uniopolis  , 

Uniontown 

Unionville    

Upper   Sandusky 

Utica    

Van  Buren    

Vandalia    

Vanlue    

Venedocia     

Vermilion    

Versailles     

Vienna    

Vinton    

Wadsworth 

Waldo     

Wapakoneta 

Warsaw    

Washington 
Washingtonville    . 

Waterville   

Wauseon    

Waverly   

Waynesburg    .... 

Waynesfield 

Waynesville     .... 

Webster    

Wellington     

West  Alexandria. 

West  Cairo 

West  Carrollton  . 
West  Chester  .  . . 
West   Cleveland.  . 

West  Elkton 

West  Lafayette  . 
Western  Star   .  . . 

Westerville    

West  Farmington 
West  Jefferson.  . . 


County. 


Lucas    

Meigs    

Pickaway   

Muskingum    

Clermont    

Mahoning     

Miami     

Crawford    

Perry    

Wood    

Jefferson    

Tuscarawas    

Montgomery    

Athens    

Tuscarawas    

Tuscarawas    

Darke   

Auglaize 

Belmont    

Union    

Wyandot    

Licking     

Hancock    

Montgomery    

Hancock   

Van  Wert    

Erie     

Darke    

Clark 

Gallia 

Medina   .  . . 

Marion    

Auglaize 

Coshocton     

Guernsey    

Mahoning  &  Columbiana 

Lucas    

Fulton    

Pike    

Stark    

Auglaize     

Warren     

Darke    

Lorain    

Preble  

Allen     

Montgomery    .  .  ! 

Butler     

Cuyahoga     

Preble   

Coshocton     

Summit    

Franklin     

Trumbull    

Madison    


Population, 
1900. 


617 

# 

388 
543 
290 
374 
1,703 

293 

* 

352 

3,526 

* 

387 

625 

412 

4,582 

1,282 

* 

245 
259 

3,355 
826 
367 
284 
356 
199 

1,184 

1,478 

* 

304 

1,764 

278 

3,915 

458 

374 

1,092 

703 

2,148 

1,854 

613 

542 

723 

204 

2,094 

740 

338 

987 


215 

148 

1,462 

516 

803 


*  Population  not  given  in  census. 


864 


THE    OHIO    MUNICIPAL    CODE. 


Name. 


West  Leipsic 
West  Liberty. 
West  Manchester 
West  Mansfield . . 
West  Middleburg . 
West  Millgrove.  . 
West  Milton 

Weston     

West    Rushville 

West  Salem 

West    Union 

West  Unity 

West    Wheeling.  . 

Westwood     

Wharton     

White    House.  .  .  . 

Wilkesville    

Williamsburg    .  .  . 
Williamsport     .  . . 

Willoughby    

Willshire    

Wilmington     .... 

Wilmot 

Winchester     

Winchester    

Windham   

Winton  Place .... 

Woodsfield 

Woodstock   

Woodville     

Worthington    .... 

Wren     

Wyoming   

Yellow    Springs.  . 

Yorkshire     

Zaleski    

Zanesfield     

Zoar    


County. 


Putnam    .  . , 
Logan   ..-..', 

Preble 

Logan 

Logan   

Wood    

Miami 

Wood    

Fairfield     .  . 
Wayne 
Adams 
Williams    .  . 
Belmont    .  . . 
Hamilton    . 
Wyandot    . . 
Lucas 
Vinton 
Clermont    . 
Pickaway   . 

Lake    , 

Van  Wert 
Clinton  .  . . 
Stark  .... 
Preble  .... 
Adams  .  .  . 
Portage  .  . 
Hamilton  . 
Monroe  .  .  . 
Champaign 
Sandusky  . 
Franklin  . 
Van  Wert 
Hamilton  . 
Greene  .  .  . 
Darke  .... 
Vinton  .  . . 
Logan  .... 
Tuscarawas 


Population, 
1900. 


346 
1,236 
384 
875 
288 
236 
904 
953 
161 
656 
1,033 
897 
444 

439 
621 
223 

1,002 
547 

1,753 
560 

3,613 
354 
375 
796 
283 

1,219 

1,801 
325 
831 
443 
242 

1,450 

1,371 

* 

577 
278 
290 


*  Population  not  given  in  census. 


[seal] 


In  testimony  whereof  I  have  hereunto  subscribed 
my  name  and  caused  the  seal  of  said  office  to 
be  affixed  this  seventeenth  day  of  November, 
A.  D.,  1902.  Lewis  C.  Laylin, 

Secretary  of  State. 


TABLE  OF  SECTIONS. 

Index  to  the  sections  of  the  Revised  Statutes  and  acts  contained 
in  this  volume. 


Section 
of 

Page  in 

Ellis 

Section 
of 

Page  in 
Ellis 

Section 
of 

Page  in 
Ellis 

Section 
of 

Page  in 

Ellis 

Statutes. 

Code. 

Statutes. 

Code. 

Statutes. 

Code. 

Statutes. 

Code. 

1 

531 

1315 

554 

1597 

30 

1718b(2, 

541 

2 

531 

1380 

829 

1598 

31 

1718c 

541 

3 

531 

1381 

830 

1599 

31 

1721 

541 

4 

532 

1382 

830 

1600 

33 

1725 

556 

5 

532 

1383 

830 

1601 

,  33 

1726 

556 

6 

532 

1448c 

760 

1602 

34 

1727 

556 

7 

533 

1448d 

761 

1603 

34 

1728 

556 

8 

533 

1464a 

730 

1603a 

34 

1729 

557 

9 

534 

1473a 

730 

1604 

35 

1731 

557 

10 

534 

1536 

827 

1605 

35 

1732 

557 

11 

534 

1537 

827 

1606 

35 

1733 

558 

16 

535 

1544 

828 

1607 

35 

1734 

558 

17 

535 

1553 

10 

1608 

35 

1735 

559 

19 

536 

1554 

10 

1609 

36 

1736 

559 

20 

536 

1555 

10 

1610 

36 

1737 

502 

21 

537 

1556 

12 

1611 

37 

1738 

504 

145 

553 

1557 

13 

1612 

38 

1739 

507 

247a 

679 

1558 

13 

1613 

38 

1740 

507 

247b 

680 

1559 

14 

1614 

38 

1741 

507 

247c 

681 

1560 

14 

1615 

39 

1742 

508 

409—26 

604 

1561 

14 

1616 

40 

1743 

508 

409—28 

604 

1561a 

15 

1648 

821 

1744 

542 

409—51 

553 

1561b 

16 

1649 

821 

1745 

543 

409—54 

554 

1561c 

17 

1650 

821 

1746 

331-449 

409—55 

554 

1562 

19 

1651 

822 

1747 

331-449 

625 

755 

1563 

20 

1652 

822 

1748 

331-450 

633—11 

605 

1564 

21 

1653 

823 

1750 

450 

633—14 

605 

1565 

21 

1654 

824 

1751 

450 

633—15 

605 

1565a 

22 

1678 

446 

1752 

543 

633—16 

606 

1566 

22 

1689 

539b 

1756 

335-452 

656 

606 

1566a 

23 

1691 

539b 

1757 

335-452 

781—26 

607 

1567 

23 

1694 

320 

1758 

336-453 

781—30 

608 

1568 

23 

1695 

322 

1759 

336-453 

794 

380 

1569 

24 

1696 

323 

1760 

544 

799a 

564 

1569a 

24 

1697 

324 

1761 

337-454 

803—1 

835 

1570 

24 

1698 

325 

1762 

454 

803—2 

836 

1571 

24 

1699 

325 

1763 

455 

860 

755 

1571a 

25 

1700 

824 

1767 

339 

922—1 

610 

1589 

25 

1701 

825 

1768 

339 

929—1 

609 

1590 

27 

1702 

825 

1769 

340 

974 

609 

1591 

28 

1703 

825 

1771 

544 

985 

610 

1592 

29 

1704 

826 

1773 

545 

1047 

545 

1593 

29 

1705 

826 

1774 

548 

1049 

537 

1594 

30 

1718 

540 

1775 

549 

1061 

551 

1595 

30 

1718a 

540 

1122 

545 

1596 

30 

1718b (1) 

540 

1123 

546 

Section  of 

Page  in 
Ellis 

Section 

Page  In 

Section  of 

Page  in 

Section  of 

Page  in 
Ellis 

Statutes. 

of 

Ellis 

Statutes. 

Ellis 

Statutes. 

Code 

Statutes. 

Code. 

Code 

Code 

1776 

342 

1815—6 

580  r 

2054 

355 

21071 

619 

1777 

342 

1815—7 

580 

2055 

355 

2107m 

619 

1778 

343 

1815—8 

580 

2056 

355 

2107n 

619 

1779 

347 

1816 

580 

2057 

356 

2107o 

619 

1780 

348 

1817 

580 

2058 

356 

2107p 

620 

1782 

550 

1817a 

581 

2059 

356 

2107q 

620 

1783 

550 

1818 

581 

2060 

356 

2107r 

621 

1784 

550 

1819 

581 

2061 

357 

2107s 

622 

1785 

566 

1820 

581 

2062 

357 

2107t 

622 

1785a 

566 

1821 

582 

2063 

357 

2107u 

623 

1785b 

567 

1822 

582 

2064 

358 

2107v 

623 

1785c 

567 

1823 

582 

2065 

358 

2107w 

623 

1785d 

567 

1824 

582 

2066 

358 

2108 

64 

1785e 

568 

1825 

583 

2067 

358 

2109 

65 

1785f 

568 

1826 

583 

2068 

359 

2110 

65 

1785g 

568 

1827 

583 

2069 

359 

2111 

65 

1786 

569 

1828 

583 

2070 

359 

2112 

65 

1787 

569 

1829 

584 

2071 

359 

2114 

421 

1788—1 

570 

1830 

584 

2072 

360 

2115 

421a 

1788—2 

570 

1830—1 

584 

2073 

360 

2116 

422 

1789 

570 

1830 — 2 

584 

2073 

360 

2117 

593 

1790 

570 

1831 

585 

2074 

360 

2118 

422 

1791 

571 

1832 

585 

2075 

361 

2119 

423 

1792 

571 

1833 

585 

2076 

361 

2120 

424 

1793 

572 

1834 

585 

2077 

361 

2121 

424 

1794 

572 

1835 

586 

2078 

362 

2122 

425 

1795 

572 

1836 

586 

2081 

362 

2122—1 

593 

1796 

572 

1837 

586 

2092 

362 

!2123 

426 

1797 

572 

1838 

587 

2093 

363 

;2124 

427 

1797a 

573 

1839 

587 

2094 

363 

2125 

427 

1797b 

573 

1840 

587 

2099 

363 

2126 

428 

1797c 

574 

1841 

587 

2100 

364 

2127 

429 

1798 

574 

1842 

587 

2100c 

611 

2128 

429 

1799 

574 

1843 

451 

2101 

611 

2129 

431 

1800 

575 

1844 

587 

2102 

364 

2130 

431 

1801 

575 

1845 

587 

2103 

612 

2131 

432 

1802 

575 

1846 

588 

2105 

364a 

2131a 

594 

1803 

576 

1848 

470 

2106 

365 

2132 

432 

1804 

576 

1849 

470 

2107 

612 

2132a 

594 

1805 

576 

1850 
1851 
1852 
1853 
1854 
1864 
1865 
1866 
1867 

471 
471 
471 
472 
472 
590 
590 
591 
591 

2107a(l) 

612 

2134 

433 

1806 

577 

2107a(2) 

613 

2134—1 

594 

1807 

577 

2107b (1) 

613 

2134—2 

595 

1808 

577 

2107c(l) 

614 

2134—3 

595 

1809 

577 

2107d(l) 

615 

2135 

434 

1810 

577 

2107e(l) 

615 

2136 

434 

1811 

578 

2107a(3) 

616 

2137 

434 

1812 

578 

2107b(2) 

617 

2138 

435 

1813 

348 

1868 

591 

2107c (2) 

617 

2139 

436 

1814 

578 

1869 

591 

2107d(2) 

617 

2140 

436 

1815 

1815—1 

1815—2 

1815—3 

1815—4 

1815—5 

349 
579 
579 
579 
579 
580 

2050 

2051 

2052 

2053 

2053—1 

2053—2 

352 
353 
353 
354 
354 
354 

2107e(2) 

2107f 

2107g 

2107h 

2107i 

2107J 

2107k 

617 
617 
618 
618 
618 
618 
618 

2141 

2141—1 

2142 

2142a 

2142b 

2142c 

2142d 

437 
595 
438 
596 
596 
596 
597 

866 


Section  of 

Page  in 
Ellis 

Section  of 

Page  in 

Section  of 

Page  in 
Ellis 

Section  of 

Page  in 

Statutes. 

Statutes. 

Ellis 

Statutes. 

Statutes. 

Ellis 

Code 

Code 

Code 

Code 

2142e 

597 

2174 

634 

2426 

466 

2499 

678 

2142e— 1 

598 

2174—1 

635 

2427 

466 

2500 

681 

2142e— 2 

598 

2175 

635 

2428 

466 

2501 

146 

2142e— 3 

600 

2176 

636 

2426 

466 

2503 

698 

2142e— 4 

601 

2181 

636 

2428 

466 

2504 

699 

2142e— 5 

602 

2182 

637 

2429 

467 

2505   " 

699 

2142e— 6 

602 

2183 

637 

2430 

467 

2505a 

700 

2142e— 7 

602 

2184 

638 

2431 

467 

2505b 

701 

2143 

438 

2185 

638 

2432 

467 

2505b— 1 

702 

2144 

439 

2268 

260 

2433 

468 

2505c 

702a 

2145 

439 

2278 

260 

2434 

468 

2505e 

703 

2146 

440 

2279 

261 

2435 

468 

2515—39 

494 

2147 

440 

2282 

262 

2435—1 

646 

2515—40 

494 

2148 

441 

2284 

262 

2435—2 

646 

2515—41 

495 

2149 

65 

2285 

263 

2435—3 

647 

2515—42 

495 

2150 

67 

2286 

264 

2435—4 

647 

2515—43 

495 

2151 

67 

2287 

266 

2435—5 

648 

2515—44 

495 

2152 

67 

2288 

267 

2435—6 

648 

2515—45 

495 

2153 

626 

2289 

267 

2435—7 

649 

2515— 45e 

496 

2154 

626 

2290 

269 

2435—8 

652 

2515— 45f 

496 

2154a 

626 

2291 

269 

2435—9 

652 

2515— 45g 

496 

2155 

627 

2294 

270 

2435—10 

652 

2515— 45h 

496 

2156 

627 

2295 

270 

2435—11 

653 

2515— 45i 

496 

2157 

627 

2297 

270 

2435—12 

653 

2515— 45j 

496 

2158 

627 

2298 

271 

2435—13 

653 

2515— 45k 

497 

2159 

628 

2299 

271 

2435—14 

654 

2516 

67 

2160 

628 

2300 

271 

2435—15 

654 

2517 

67 

2161 

628 

2301 

773 

2435—16 

654 

2518     • 

731 

2162 

629 

2302 

271 

2435—17 

655 

2521 

68 

2163 

629 

2313 

774 

2435—18 

655 

2522 

68 

2164. 

629 

2314 

774 

2470 

472 

2523 

69 

2165 

365 

2318 

271 

2471 

473 

2524 

69 

2166 

629 

2321 

272 

2472 

473 

2525 

69 

2167 

630 

2326 

272 

2473 

473 

2526 

69 

2167 — 1 

630 

2327 

273 

2474 

475 

2527 

69 

2167 — 2 
2167—3 
2167—4 
2167 — 5 

630 
631 
631 
632 

2332 
2404 
2407 

273 

774 
459 

2475 

2478 
2479 

475 
656 
658 

2527a 

2528 

2529 

70 

71 
71 

2167—6 

633 

2409 

459 

2480 

'     660 

2530 

71 

2167—9 

497 

2410 

460 

2481 

660 

2531 

72 

2167—10 

497 

2411 

460 

2482 

660 

2532 

72 

2167—11 

498 

2411—1 

644 

2483 

661 

2533 

72 

2167—12 

498 

2412 

461 

2484 

661 

2533a 

73 

2167—13 

498 

2413 

462 

2485 

661 

2534 

724 

2167—14 

498 

2414 

462 

2485a 

662 

2535 

724 

2167 — 15 

499 

2415 

462 

2486 

662 

2536 

724 

2167 — 16 
2167—17 
2167—18 
2167 — 19 

499 
499 
499 
499 

2416 

462 

2489—1 

664 

2537 

725 

2417 

463 

2489—2 

664 

2538 

725 

2418 

463 

2489—3 

664 

2539    . 

725 

2167 — 20 

499 

2419 

463 

2490 

665 

2540 

725 

2167—21 

499 

2420 

464 

2491 

665 

2541 

726 

2168 

365 

2421 

464 

2494 

674 

2542 

726 

21C9 

366 

2422 

465 

2495 

675 

2543 

726 

1:171 

366 

2423 

465 

2496 

676 

2544 

727 

2172 

367 

2424 

646 

2497 

677 

2545 

727 

2173 

633 

2425 

466 

2498 

677 

2545a 

727 

867 


Section  oi 

Page  in 
Ellis 

Section  of 

Page  in 
Ellis 

Section  of 

Page  in 
Ellis 

Section  of 

Page  in 

Statutes. 

Statutes. 

Statutes. 

Statutes. 

Ellis 

Code 

Code 

Code 

Code 

2546 

727 

2608 

748 

2664—7 

139 

2805o 

798     ' 

2547 

727 

2609 

749 

2664—8 

140 

2806 

799 

2548 

728 

2610 

749 

2664—9 

140 

2807 

799 

2549 

728 

2611 

749 

2664—10 

140 

2815 

801 

2550 

728 

2612 

750 

2664—11 

140 

2816 

801 

2552 

729 

2613 

750 

2664—12 

141 

2824 

756 

2553 

729 

2614 

750 

2664—13 

141 

2554 

729 

2614a 

751 

2664—14 

142 

2830 

761 

2555 

729 

2615 

751 

2669 

73 

2834 

785 

2556 

729 

2616 

752 

2669b 

77 

2835 

287 

2557 

730 

2617 

752 

2669c 

78 

2835b 

292 

2558 

730 

2618 

753 

2670 

78 

2836 

292 

2559—1 

732 

2619 

753 

2670—1 

78 

2837 

292 

2559—2 

733 

2620 

753 

2671 

79 

2996—1 

845 

2559—3 

733 

2621 

753 

2672 

79 

2996—2 

845 

2559—4 

733 

2622 

754 

2675—1 

109 

3096 

836 

2559 — 5 

734 

2623 

754 

2675—2 

110 

3096a 

836 

2559—6 

734 

2624 

754 

2675—3 

110 

3097 

837 

2559—7 

735 

2625 

754 

2675 — 4 

110 

3098 

837 

2559—8 

735 

2629 

367 

2675—6 

110 

309.9 

837 

2559—9 

735 

2630 

368 

2675—7 

111 

3107—1 

639 

2559—10 

735 

2631 

368 

2675—8 

111 

3107—2 

641 

2559—11 

736 

2632 

368 

2675—9 

111 

3107—3 

641 

2559—12 

736 

2633 

369 

2676 

775 

3107—4 

641 

2559—13 

737 

2634 

369 

2677 

776 

3107—5 

642 

2566 

738 

2635 

369 

2680 

781 

3107—6 

642 

2567 

738 

2636 

370 

2680a 

782 

3107—7 

642 

2568 

739 

2642 

122 

2680b 

782 

3107—8 

643 

2569 

739 

2643 

123 

2680c 

782 

3107—19 

842 

2570 

739 

2644 

124 

2680d 

783 

3107—20 

842 

2571 

740 

2645 

124 

2681 

826 

3107—21 

843 

2572 

740 

2646 

124 

2690c 

784 

3107—22 

843 

2572a 

741 

2647 

125 

2701 

276 

3107—23 

843 

2572b 

741 

2648 

126 

2703 

281 

3107—24 

844 

2573 

742 

2649 

126 

2706 

282 

3107—48 

643 

2574 

743 

2649—1 

126 

2707 

282 

3107—49 

643 

2575 

743 

2649—2 

127 

2708 

282 

3283 

682 

2581—1 

722 

2649—3 

127 

2709 

784 

3284 

684 

2581—2 

722 

2650 

127 

2732 

787 

3310—1 

685 

2581—3 

722 

2651 

130 

2805 

791 

3320 

685 

2581-^t 

722 

2652 

130 

2805—1 

794 

3333— la 

690a 

¥      2581—5 

723 

2653 

132 

2805—2 

794 

3337—1 

686 

2581—6 

723 

2654 

133 

2805a 

794 

3337—2 

687 

2581—7 

723 

2655 

134 

2805b 

795 

3337—3 

687 

2581—8 

723 

2656 

135 

2805c 

795 

3337—4 

687 

2597 

744 

2657 

136 

2805d 

795 

3337—5 

687 

2598 

745 

2660 

136 

2805e 

796 

3337—6 

688 

2599 

745 

2661 

137 

2805f 

796 

3337—7 

688 

2600 

745 

2662 

137 

2805g 

796 

3337—18 

688 

2601 

746 

2664 

137 

2805h 

797 

3337—19 

689 

2602 

747 

2664—1 

137 

2805i 

797 

3339 

690 

2603 

747 

2664—2 

138 

2805J 

798 

3437 

142 

2604 

747 

2664—3 

138 

2805k 

798 

3439 

704 

2605 

748 

2664—4 

138 

28051 

798 

3439a 

705 

2606 

748 

2664—5 

139 

2805m 

798 

3440 

706 

2607 

748 

2664—6 

139 

2805n 

798 

3441 

707 

868 


Section 

of 
Statutes. 

Page  In 

Ellis 

Section 
of 

Page  in 

Eilis 

Section 
of 

Page  in 

Ellis 

Section 
of 

Page  in 

Ellis 

Code. 

707 

Statutes. 

Code. 

Statutes. 

Code. 

Statutes. 

Code. 

3442 

3560 

672 

4238—6 

810 

4402—4 

818 

3443 

708 

3561 

673 

4238—7 

810 

4402—5 

818 

3443a 

708 

3561a 

673 

4238—8 

810 

4402—6 

819 

3443—1 

708 

3641c 

539 

4238—9 

811 

4402—7 

819 

3443—2 

709 

3718 

841a 

4238—10 

811 

4402—8 

819 

3443—3 

709 

3718a 

588 

4238—11 

812 

4402—9 

820 

3443—4 

710 

3825 

765 

4238—12 

812 

4415 

816 

3443—5 

710 

3826 

766 

4238—13 

812 

4416 

817 

3443—6 

710 

3826a 

766 

4238—23 

813 

4446—4 

844 

3443—7 

710 

3826b 

767 

4364—17 

802 

4483 

769 

3443—11 

711 

3858 

721 

4364—20 

803 

4484 

770 

3443—14 

711 

3859 

721 

4364— 20a 

804 

4485 

770 

3444 

713 

3860 

722 

4364— 20b 

805a 

4730 

830 

3445 

713 

3861 

722 

4364— 20c 

806 

4732 

831 

3446 

695 

3868 

837 

4364— 20d 

807 

4732a 

832 

3461 

714 

3871 

768 

4364— 20e 

807 

4732b 

834 

3471 

715 

3872 

768 

4364— 20f 

807 

4747 

761 

3471a 

715 

3873 

769 

4364— 20g 

808 

4825 

759 

3471—1 

716 

3874 

769 

4364— 20h 

808 

4850 

760 

3471—2 

717 

3875 

769 

4364— 20i 

808 

4851 

760 

3471—3 

717 

3977 

549 

4364—40 

834 

4906 

762 

3471—5 

717 

4002—39 

777 

4366 

828 

4909 

774b 

3471—6 

718 

4002—40 

778 

4367 

828 

4938 

756 

3471—7 

718 

4002—41 

778 

4369 

829 

5142 

99 

3471—8 

720 

4002—42 

779 

4370 

829 

5852 

838 

3482 

763 

4002—43 

779 

4386 

813 

5854 

839 

3483 

764 

4002—44 

779 

4387 

813 

6565 

592 

3491 

764 

4002—45 

780 

4388 

813 

6801a 

624 

3492 

765 

4095 

486a 

4389 

813 

6801b 

624 

3537 

762 

4096 

487 

4390 

814 

6801c 

625 

3540 

762 

4097 

487 

4391 

814 

6858—1 

555 

3542 

763 

4099 

488 

4392 

814 

6858—2 

555 

3550 

668 

4100 

489 

4393 

814 

6858—3 

555 

3550a 

669 

4101 

489 

4394 

814 

6921 

772d 

3551 

669 

4102 

490 

4395 

815 

6923 

604a 

3552 

670 

4103 

490 

4396 

815 

6945a 

809i 

3553 

670 

4104 

490a 

4398 

815 

6945b 

809i 

3554 

671 

4105 

844 

4398a 

815 

6945c 

809i 

3555 

671 

4202 

839 

4398b 

816 

6969 

538 

3556 

671 

4207 

840 

4399 

816 

6976 

538 

3557 

671 

4209—1 

841 

4400 

816 

6980a 

690 

3558 

671 

4209—2 

841 

4402—1 

817 

7129 

554 

3559 

672 

4209a 

841 

4402—2 
4402—3 

817 
818 

868a 


ACTS. 


"An  act  to  provide  for  detaching  unplatted  farm  lands  from  cities 
and  villages  and  for  attaching  the  same  to  adjacent  townships." 
Passed  April  23,  1902.    95  O.  L.,  259;  page  41. 

"An  act  to  amend  sections  2835,  2836  and  2837  and  repeal  section 
2837a  of  the  Revised  Statutes  authorizing  the  issue  of  bonds  by  cities, 
villages,  hamlets  and  townships."  Passed  April  29,  1902.  95  O.  L.,  318; 
page  287. 

"An  act  to  abolish  grade  crossings  in  municipalities."  Passed  May 
2,  1902.    95  O.  L.,  356;  page  691. 

"An  act  to  further  provide  for  the  transfer  of  public  funds."  Passed 
May  6,  1902.    95  O.  L.,  371;  page  170. 

"An  act  to  authorize  trustees  of  townships  and  councils  of  munic- 
ipalities to  make  additional  levy  for  the  purpose  of  drilling  an  oil  or 
gas  well  when  authorized  by  vote  of  the  electors  of  such  township  or 
municipality."     Passed  May  9,  1902.     95  O.  L.  449 ;  page  067. 

"An  act  to  provide  for  the  cost  of  collecting,  removing  and  dispos- 
ing of  garbage,  dead  animals  and  animal  offal  where  provision  could 
not  be  made  therefor."  Passed  May  10,  1902.  95  O.  L.,  477;  page 
603. 

"An  act  authorizing  the  issuing  of  bonds  of  municipal  corpora- 
tions for  enlarging,  improving  or  extending  natural  gas  works,  and 
providing  for  submitting,  issuing  the  same  to  a  vote  of  the  people." 
Passed  May  10,  1902.     95  O.  L.  478;  April  23,  1904,  97  O.  L.  237;  page  666.4 

"An  act  authorizing  changes  in  (and)  the  extensions  of  existing 
street  railway  routes,  and  in  existing  transfer  systems."  Passed  May 
10,  1902.     95  O.  L.,  502;  page  712. 

"An  act  to  create  a  bureau  of  inspection  and  supervision  of  public 
offices,  and  to  establish  a  uniform  system  of  public  accounting,  audit- 
ing and  reporting,  under  tlie  administration  of  the  Auditor  of  State." 
Passed  May  10,  1902.     95  O.  L.,  514;  page  560. 

"An  act  authorizing  and  directing  the  city  auditors  and  accounting 
officers  of  municipal  corporations  to  credit  to  the  general  fund  all  cash 
balances  remaining  in  any  fund  which  can  no  longer  be  used  for  the 
purpose  for  which  it  was  created."  Passed  May  12,  1902.  95  O.  L., 
596;  page  547. 

"An  act  to  create  a  board  of  supervision  in  the  erection  simulta- 
neously of  public  municipal  and  county  buildings."  Passed  May  6,  1902. 
95  O.  L.,  879;  page  737. 

"An  act  authorizng  the  levy  of  taxes  in  muncipalities  to  provide 
for  firemen's,  police  and  sanitary  police  pension  or  relief  funds,  and 
to  create  and  perpetuate  boards  of  trustees  for  the  administration  of 
such  funds."     Passed  April  23,  1902.     95  O.  L.,  223;  page  392. 

"An  act  to  authorize  municipalities  to  construct  and  repair  viaducts 
and  to  provide  for  the  manner  in  which  funds  raised  for  such  purpose 
shall  be  expended."    Passed  May  12,  1902.    95  O.  L.,  567;  page  770. 

"An  act  to  authorize,  upon  certain  conditions,  the  sprinkling  of 
streets,  avenues,  alleys,  public  squares  and  public  places  in  municipal 
corporations."    Passed  May  9,  1902.    95  O.  L.,  447;  page  772. 

"An  act  to  provide  for  the  appointment  of  a  board  of  review  for 
the  equalization  of  real  and  personal  property."  Passed  May  10,  1902. 
95  O.  L.,  481;  page  789. 

"An  act  to  carry  into  effect  the  intention  both  of  officials  and  par- 
ties respecting  certain  county  and  municipal  instruments  and  proceed- 
ings."   Passed  May  9,  1902.    95  O.  L.,  444;  page  835. 

868b 


acts.  868c 

"  An  act  to  confer  jurisdiction  upon  police  courts."  Passed  January  22, 
1904,  97  O.  L.  7 ;  page  569. 

"  An  act  to  provide  for  appropriation  of  private  property  in  municipal- 
ities by  corporations  for  street  railway  purposes."  Passed  April  17, 
1904,  97  O.  L.  106;  page  711a. 

"An  act  to  provide  how  railroad  and  highway  crossings  may  be  con- 
structed."    Passed  May  3,  1904,  97  0.  L.  546;  page  690b. 

"  An  act  to  provide  for  village  and  township  to  jointly  enlarge,  improve 
pr  erect  a  public  building."     Passed  April  26,  1904,  97  O.  L.  483;  page  737a. 

"  An  act  to  authorize  the  councils  of  municipal  corporations  to  permit 
the  use  of  public  buildings  under  their  control."  Passed  April  23,  1904,  97 
0.  L.  278;  page  738. 

"  An  act  to  prevent  loss  of  life  in  public  halls  and  theaters."  Passed 
April  23,  1904,  97  O.  L.  264;  page  743. 

"  An  act  to  provide  for  the  construction  of  sidewalks  in  villages." 
Passed  April  26,  1904,  97  O.  L.  481 ;  page  774. 

"  An  act  to  authorize  the  transfer  of  property  by  municipal  corporations 
to  trustees  of  libraries  of  school  districts,  and  the  acceptance  of  the  same, 
and  other  property  for  library  purposes  by  said  trustees."  Passed  April  21, 
1904,  97  O.  L.  133;  page  780. 

"  An  act  to  authorize  the  council  of  any  incorporated  village  in  Ohio  to 
levy  an  additional  tax  for  fire  protection  purposes."  Passed  April  25,  1904, 
97  O.  L.  407 ;  page  786. 

"  An  act  further  to  provide  against  the  evils  resulting  from  the  traffic 
in  intoxicating  liquors  by  providing  for  local  option  in  residence  districts  of 
municipal  corporations."    Passed  April  4,  1906,  98  O.  L.  68;   page  809. 

"An  act  to  provide  for  the  release  and  discharge  of  county,  city, 
village,  township  and  school  district  treasurers  and  their  sureties  in 
certain  cases."    Passed  March  28,  1906,  98  O.  L.  122;  page  546. 

"An  act  to  provide  for  annual  conferences  of  health  officers."  Passed 
April  16,  1906;  98  O.  L.  205;   page  604a. 

"An  act  to  grant  to  municipalities  the  right  to  require  street  rail- 
way companies  to  sprinkle  their  right  of  way  within  such  municipal- 
ity."    Passed  February  8,  1906;   98  O.  L.  5;   page  712. 

"An  act  authorizing  councils  of  municipalities  to  grant  franchises 
to  interurban  railroads,  using  electric  or  other  motive  power,  except 
steam,  for  the  purpose  of  securing  terminals  in  municipalities."  Passed 
April  16,  1906;  98  O.  L.  253;  page  713. 

"An  act  to  authorize  municipal  corporations  to  contract  to  have 
treated  with  oil,  for  the  purpose  of  laying  the  dust  on,  and  preserving 
the  surface  of  streets,  avenues,  alleys  and  public  squares  and  places 
and  roadways  in  public  parks,  and  providing  for  the  payment  of  the 
cost  of  such  treatment  by  assessment  on  abutting  property  and  from 
the  corporation's  funds."    Passed  March  14, 1906,  98  O.  L.  50;  page  772a. 

"An  act  to  authorize  councils  of  villages  to  levy  a  tax  for  street 
lighting  and  fire  protection."  Passed  March  14,  1906;  98  O.  L.  46; 
page  787. 


TABLE  OF  CASES 


(References    are    to    pages.) 


A.  B.  &  S.  Ry.  Co.,  In  re,  691 
Abraham  v.   Cincinnati,   128,   130, 

747 
Adams,  et  al.,  v.   Phifer,  99 
Adams  Exp.  Co.  v.  Gas  Co.,  660 
Adkins    v.    Toledo,    186,    263,    314 
Akerman  v.  Lima,  48,  317,  324 
Akron  v.  Allen,  181,  269 
Akron  v.  Chamberlain,  208,  210 
Akron  &  C.  F.  Rapid  Transit  Co. 

v.  Erie  Ry.,  113 
Akron,  etc.,  Railway  Co.  v.  Keck, 

143 
Akron  v.  France,  373,  381a 
Akron  v.  Keister,  120 
Akron  v.  McComb,  208 
Akron  v.  Traction  &  Light  Co.,  147, 

148,  148a 
Akron,   etc.,   Co.   v.   Erie  Ry.,   143 
Alexander  v.  Cincinnati,  638 
Alexander  v.  Ry.  Co.,  687 
Allen  v.  Cleveland,  181 
Allen  v.  Russell,  479 
Allen  v.  State,  827 
Alliance  v.  Campbell,  119 
Alliance  v.  Joyce,  63a,  804 
Allison  v.  City  of  Cincinnati,  775 
Allison  v.  McCune,  200 
Altaffer  v.  Nelson,  277,  278,  285    . 
Alter  v.  Cincinnati,  2,  54,  345,  461, 

645,  646,  652 
Alvord  v.  Richmond,  389 
Ampt  v.  Cincinnati,  160,  164,  169, 

175,  176,  275,  277,  278,  312,  329, 

343,  345,  346,  347,  372,  373a,  375, 

665 
Anderson  v.  Brown,  534 
Anderson   v.    Columbus,    143,    200, 

236 
Anderson  v.  Commissioners,  222 
Anderson  v.  McKinney,  et  al.,  208 
Andrew  v.  Auditor,  185,  186,  222, 

226,  227,  228 
Andrews   v.    Hyde   Park,   102 
Andrews  v.  Settles,  184 
Andrix  v.  Columbus,  232,  232a 
Angove  v.  State,  78 


Annexation    of   Newburgh,   In   re, 

4,    145 
Anonymous,  616 
Armleder  v.  Cincinnati,  122 
Armstrong  v.  Spears,  99 
Arnold  v.  Yanders,  75 
Ash  v.  Ash,  479 
Ashley    v.    Toledo,    116,    130,    744, 

745,  746 
Atlas  Bank  v.  Cincinnati,  284 
Atlas  Bank  v.  Columbia  Tp.,  345 
Auerbach  v.  Telephone  Co.,  115b 
Aultman  v.  Seiberling,  827 
Avery  v.  United  States,  44,  62 
Avondale  v.  Scudder,  205 
Avondale  v.  Tp.  Co.,  124 
Aydedott  v.    Cincinnati,   147,   150, 

315,  320 
Ayers  v.  Toledo,  203 


B. 


Babb  v.  Cincinnati,  83 
Backenstoe  v.  State,  442,  443 
Bader  v.  Lower  River  Road,  126 
Bailey  v.  Zanesville,  192,  193 
Baker  v.  Cincinnati,  49,  74,  75,  76, 

158 
Baker  v.  Norwood,  188,  190 
Baker  v.  Schott,  227,  242 
Ballard  v.  State,  471 
B.  &  O.  R.  R.  Co.  v.  Bellaire,  82 
Bancroft  v.  Wall,  44,  462 
Bank  v.  Chillicothe,  275 
Bank  v.  Norwood,  58,  115 
Banking  Co.  v.  Hubbard,  793 
Banning     v.     Trustees     Southern 

Railway,  92 
Barker  v.   State,  177,  328 
Barney  v.   Dayton,   191 
Barney  v.  Railway  Co.,  148,  153 
Barret  v.  Reed,  504 
Barry  v.  Akron,  117a 
Bartlett  v.  State,  44 
Bartley  v.  Cincinnati,  262 
Bates  v.  Fries,  339 
Bauer  v.  Avondale,  48 

869 


870 


TABLE    OF    CASES. 


(lleferences    are    to    pages.) 


Bauer  v.  Casey,  46 
Beach  v.  Marion  Twp.,.641 
Beaver  v.  Blind  Asylum,  105,  373 
Becher   V.   McCloud,    194,   268 
Becker  v.  Columbus,  187,  223 
Becker  v.  St.  Ry.  Co.,  50b,  312 
Belden   v.   Franklin,   776 
Bell  v.  Pistorius,  312,  682 
Bellaire  Co.  v.  Findlay,  qt  ah,  177, 

329,  657,  663,  666 
Bellaire,  etc.,  Street  Railway  Co.  v. 

Smith,  143 
Belle  v.   Glenville,   145,   146,   148a 
Belle  Centre  v.  Welsh,  804 
Bellefontaine  v.  Haviland,  326,  451 
Bellows  v.  Cincinnati,  316 
Bender  v.  Cushing,  410a 
Benham  v.  Cincinnati,  203 
Bentley  v.  Toledo,  191 
Bergman  v.  Cleveland,  48 
Berning  v.  Norwood,  47 
Besuden  v.  Commissioners,  96 
Betz  v.  Canton,   190,  191 
Big  Four,  etc.,  Co.  v.  Cincinnati, 

90 
Billigheimer  v.  State,  45 
Billington  v.  Hoverman,  4,  826 
Bingham  v.   Doane,  208 
Birdseye   v.   Clyde,   183,   184,   185, 

224 
Birtwhistle   v.   Cincinnati,   208 
Bisack  v.  Pape,  506 
Black  v.  Cleveland,  60 
Black  v.  Hagerty,  793,  794,  800 
Blair  v.  Cary,  203,  228,  315 
Blanchard  v.  Bissell,  19,  26,  31,  35, 

313,  321 
Blanchard   v.   Columbus,   254 
Bliss  v.  Kraus,  44,  46,  66,  265,  313, 

314 
Bloch  v.  Godfrey,  184 
Bloom  v.  Newark,  329 
Bloom  v.  Toledo,  117a 
Bloom  v.  Xenia,  318,  319,  351 
Blunk  v.  Dennison  Co.,  670 
Board  v.  Edson,  104,  747 
Board    of    Education    v.    Auditor, 

187,  230 
Board  of  Education  v.  Board,  827 
Board   of  Education  v.   Bowland, 

230 
Board  of  Education  v.  Eshelby,  505 
Board  of  Education  v.  Mills,  329 
Board  of  Education  v.  Sinton,  329 
Board  of  Education  v.  Toledo,  187 
Board  of  Education  v.  Volk,  775 
B«ard  of  Health  v.  Columbus,  329, 

418,  419,  423 


Boeres  v.  Strader,  129,  186,  254 

Bogart  V.  State,  76 

Bolton  v.   Cleveland,   8,   183,   196, 

199,  259,  268 
Boley  v.  Ohio  Life  Insurance  and 

Trust  Co.,  479 
Bond  v.  Madisonville,  174 
Bonds  v.   Salem,  204 
Bonsall  V.  Lebanon,  236,  240 
Bonte  V.  Taylor,  271 
Boone  v.  Cincinnati,  83,  84 
Boren  v.  Comm'rs  of  Darke  Co., 

105,   373,   373a,   374. 
Borgen  v.  Columbus,  202,  224,  263 
Bowles  V.  State,  32,  515 
Bowling  Green  v.  C.  H.  &  D.  R.  R., 

676,  678 
Boyd  v.  Cambridge,  117a 
Braden  v.  Commissioners,  222,  223 
Brady  v.  French,  534,  643 
Braman  v.  Elyria,  173 
Bramley  v.  Euclid,  804 
Branahan   v.    Hotel   Co.,   46,   50b* 

79,  114,  115 
Brenchweh  v.  Drake,  265 
Brenier  v.  Becker,  329,  503 
Breslin  v.  Brown,  375 
Bretsu  v.  Toledo,  117,  117a 
Brewer  v.  Bowling  Green,  268 
Bridge  Co.  v.  Steinbrock,  119 
Brigel  v.  Starbuck,  479,  827 
Brink  v.  Columbus,  118 
Britton  v.  Baker,  800 
Broadway,   etc.,  Ry.   v.   Brooklyn, 

etc.,  Ry.,  145,  149 
Brock  v.  Milligan,  531 
Bronson  v.  Oberlin,  2,  47 
Brooks  v.  Lander,  794 
Brooks  v.  Norwood,  204 
Brower  v.  Hunt,  479 
Brown  v.   Manning,  130 
Brown    V.    Toledo,    314,    346,    347, 

348,  575 
Brown  v.  Van  Wert,  47,  545 
Brundige  v.  Ashley,  348 
Brunner  v.   Harrison,   50,  74,   78 
Brush,  etc.,  Co.  v.  Jones  Bros.  Co., 

56,  115,  665 
Buchanan  Bridge  Co.  v.  Campbell, 

351,  372,   373a 
Buckingham  v.  R.  R.,  528 
Buning  v.  Cincinnati  Street  Rail- 
way, 148a,  346 
Burch  v.  Franklin,  471 
Burckholter  v.  McConnellsville,  48- 
Burgett  V.  Burgett,  1 
Burgett  v.   Norris,   222 
Burggreve  v.  Cincinnati,  191 


TABLE   OF   CASES. 


871 


(References    are    to    pages.) 


Burgunder  v.  Weil,  1 

Burial   Case  Co.   v.   Railway   Co., 

115b 
Burke  v.  State,  827 
Burke  v.  Wapakoneta,  228 
Burkhardt  v.  Cincinnati,  263,  268 
Burkhart  v.  Columbus,  75. 
Burkhardt  v.  Hanley,  776 
Burns  v.  Patterson,  266 
Burns  v.  Telephone  Co.,  115a 
Burrows  v.  Cosier,  112 
Burt  V.  Rattle,  668 
Buse  v.  Cincinnati,  187 
Bush  V.  Cincinnati,  227 
Butler   V.   Commissioners,   789 
Butler  v.  Cincinnati,  113,  115b,  716 
Butler  Co.  v.  Welliver,  513 
Butler  v.  Toledo,  263,  269 


a 


€.  &  A.  Tp.  Co.  v.  Avondale,  765 
C.  &  H.  Electric  Street  Ry.  Co.  v. 

C.  H.  &  I.  Railroad  Co.,  143,  699 
C.  &  W.  Tp.  Co.  v.  Cincinnati,  123, 

765 
€.  C.  &  W.  Tp.  Co.  v.  Cincinnati, 

124 
C   C.   &  W.   Tp.   Co.  v.   Traction 

Co.,  112,  123 
C.  C.  C.  &  St.  L.  Ry.  Co.  V.  C.  &  I. 

W.  Ry.,  115c 
C.  C.  C.  &  St.  L.  Ry.  Co.  v.  De 

Graff,  676 
C.  C.  C.  &  St.  L.  Ry.  Co.  v.  St.  Ber- 
nard, 674,  676,  677 
C.  C.  C.  &  St.  L.  Ry.  Co.  v.  U.  B.  & 

N.  Ry.  Co.,  84,  143,  145,  146,  150, 

705 
C.  L.  &  A.  St.  Ry.  v.  Lohe,  143 
C.  L.  &  A.  Ry.  Co.  v.  North  Bend, 

3,  4 
C.  L.  &  N.  Ry.  v.  Cincinnati,  262 
C,  I.,  St.  L.  &  C.  Ry.  v.  Pfitzer, 

683 
€.  N.  O.  &  T.  P.  Ry.,  In  re,  135 
Cable  Ry.  v.  Neare,  152 
Cady  V.  Barnesville,  47 
Cain  v.  Traction  Co.,  143a 
Caldwell  V.   Carthage,   86,   194 
€aldwell  v.  Columbus,  185 
Calkins  v.  Toledo,  191 
Callen  v.  Electric  Light  Co..  113, 

115a,  115b,  133,  747 
Cambridge  v.  Smallwood,  326,  451 


Campbell  v.  Cincinnati,  195,  315, 

318,  319 
Campbell  v.  Park,  222,  223 
Canfield  v.  Brobst,  544 
Canton  v.  Nist,  48,  63a,  314 
Canton  v.  Shock,  54,  83,  460 
Canton  v.  Wagner,  199 
Cardington   v.   Adm'r   of   Freder- 
icks, 117,  122 
Carey  v.  State,  583,  805,  806 
.  Carlisle    v.    Cincinnati,    210,    211, 

224,  262 
Carmichael  &  Co.  v.  McCourt,  373 
Carpenter  v.  Canal  Co.,  200 
Carpenter  v.   Sloane,  505 
Carr  v.  Bd.  of  Ed.,  423 
Carson  V.  Delhi,  227 
Cass  Tp.  v.  Dillon,  545 
Central    O.    Gas    &    Fuel    Co.    v. 

Columbus,  657,  659 
Central  O.  R.  R.  Co.  v.  Columbus, 

268 
Central  Un.  Tel.  Co.  V.  Columbus 

Grove,  714 
Chamberlain  v.  Cleveland,  180,  188, 

190,  202,  203,  233,  235,  261,  263, 

269 
Chambers   v.    Insurance    Co.,   312 
Chambers  v.  Ohio,  etc.,  Co.,  46 
Chapin  v.  Allison,  534 
Chapin  v.   School   District,  537 
Chase  v.  Cleveland,  117,  119 
Chatfield    v.    Cincinnati,    209,    210 
Cherry  v.   Howe,   129 
Chicago  v.  Robbins,  119,  121 
Chillicothe  v.  Gas  &  Fuel  Co.,  319, 

382 
Chinn  v.  Trustees,  641 
Chittenden  v.  Columbus,  50a,  50b, 

174,  199,  314.  324 
Christy  v.  Commissioners,  537 
Cilly  V.  Cincinnati,  246 
Cincinnati  v.  Allison,  346,  423 
Cincinnati  v.  Anchor  White  Lead 

Co.,  254,  263 
Cincinnati  v.  Anderson,  301 
Cincinnati  v.  Avenue  Co.,  223,  224, 

228 
Cincinnati  v.  Bank,  167 
Cincinnati  v.  Batsche,  187,  190,  233 
Cincinnati  v.  Beuhausen,  76 
Cincinnati  v.  Bickett,  105,  205,  224, 

254,   267,   268,   318,   321,  374 
Cincinnati  v.  Bishop,  et  ah,  697 
Cincinnati  v.  Board  of  Education, 

187 
Cincinnati  v.  Brill.  49 


872< 


TABLE   OF   CASES. 


(References    are    to    pages.) 


Cincinnati  v.  Broadwell,  550 
Cincinnati  v.  Bryson,  32,  50a,  74, 

75,  76,  158 
Cincinnati  v.  Buckingham,  59,  60, 

74,  75,  76 
Cincinnati  v.  Burnet,  264 
Cincinnati  v.  C.  &  C.  Bridge  Co., 

57,  64 
Cincinnati    v.    Cameron,    62,    176, 

389,  633 
Cincinnati  v.  Cin.  Edison  Co.,  715. 
Cincinnati   v.   Cin.    Incline   Plane 

Railway  Co.,   147 
Cincinnati    v.    Cincinnati    Street 

Railway,  145,  313,  711 
Cincinnati  v.  Columbia,  116 
Cincinnati  v.  Connor,  182,  203,  237, 

240,  254 
Cincinnati  v.  Corry,  187,  188,  194, 

199,  208 
Cincinnati  v.  Davis,  182,  263,  318, 

321 
Cincinnati  v.  Delhi,  etc.,  Tp.  Co., 

124 
Cincinnati  v.  Dexter,  103,  344,  697 
Cincinnati  v.  Edison  Elec.  Co.,  375 
Cincinnati  v.  Emerson,  183 
Cincinnati,  etc.,  R.  R.  v.  Pfau,  775 
Cincinnati  v.  Evans,  116 
Cincinati  ex  rel.  v.  Cincinnati,  175, 

460,  646 
Cincinnati  v.  Eversman,  93 
Cincinnati  v.  Fenner,  90,  318 
Cincinnati  v.  Ferguson,  et  al.,  697 
Cincinnati  v.  Fkischer,  adm'r,  117 
Cincinnati  v.  Frazer,  120,  121 
Cincinnati  v.  Frey,  246 
Cincinnati  v.  Frost,  Stearns  &  Co., 

473 
Cincinnati    v.    Fugman,    204,    254, 

265 
Cincinnati  v.  Gas  Light  and  Coke 

Co.,  313 
Cincinnati  v.  Gass,  44,  47 
Cincinnati   v.   Goodman,   184,   190, 

214,  221,  263,  267,  373a 
Cincinnati  v.  Gordon,  238,  242 
Cincinnati  v.   Green,   513 
Cincinnati  v.  Grebner,  117a 
Cincinnati    v.    Guckenberger,    277, 

278,  285,  301,  478,  697a 
Cincinnati  v.  Gwynne,  167 
Cincinnati  v.  Hamilton  Co.,  135 
Cincinnati  v.  Hess,  205,  206 
Cincinnati  v.  Holmes,  175,  535 
Cincinnati  v.  Honnigfort,  175,  189, 

205,  248,  250,  252,  254,  255 
Cincinnati  v.  Hopple,  268 


Cincinnati  v.  Hosea,  89,  102 
Cincinnati  v.  Jacob,  117a,  460 
Cincinnati  v.  James,  183,  185,  192, 

266 
Cincinnati   v.   Johnson,    238,   242, 

319 
Cincinnati  v.  Jones,  486a 
Cincinnati  v.  Kasselman,  206 
Cincinnati  v.  Kemper,  268 
Cincinnati   v.   Kirchner,   115,   116 
Cincinnati  v.  L.  &  N.  R.  R.  Co., 

683 
Cincinnati  v.  Lewis,  44,  62,  789 
Cincinnati  v.  Longworth,  184,  189, 

238,  263 
Cincinnati   v.   Manufacturing  Co., 

238 
Cincinnati  v.  Mathers,  86 
Cincinnati  v.  Manss,  192,  227 
Cincinnati    v.    McErlane,    174 
Cincinnati  v.  McMakin,  129 
Cincinnati  v.  Miller,  314 
Cincinnati  v.  Monfort,  188 
Cincinnati  v.  Morgan,  329 
Cincinnati    v.    Mt.    Auburn    Cable 

Ry.,  147 
Cincinnati  v.  Neff,  92,  93,  94,  314 
Cincinnati  v.  Oliver,  193,  264 
Cincinnati    v.    Penny,    56,   58,    83, 

115a,  118,  208,  245 
Cincinnati  v.  Presbyterian  Church, 

116 
Cincinnati  v.  Rice,  314 
Cincinnati  v.  Roth,  209 
Cincinnati  v.  Scarborough,  123 
Cincinnati  v.  Seasongood,  182,  478 
Cincinnati  v.  Shaw,  195 
Cincinnati    V.    Sherike,    199,    208, 

218,  273 
Cincinnati   v.    Shoenberger,   189 
Cincinnati  v.   Skinner,  et  at,  130 
Cincinnati  v.  Spillard,  242 
Cincinnati  v.  Standard  Wagon  Co.. 

204 
Cincinnati  v.  Steinkamp,  2,  53,  742 
Cincinnati  v.  Stone,  119 
Cincinnati  v.  St.  Ry.  Co.,  39,  147, 

148a,  343 
Cincinnati  v.  Sullivan,  205 
Cincinnati  v.  Taft,  479 
Cincinnati  v.  Thrall,  102 
Cincinnati  v.  Trustees,  697 
Cincinnati  v.  Trustees  of  Hospital, 

2,  635,  778 
Cincinnati  v.  University,  352 
Cincinnati  v.  Walls,  57 
Cincinnati  v.  Weber,  208,  210,  212 
Cincinnati  v.  Wewell,  203,  252,  254 


TABLE   OF   CASES. 


873 


(References    are    to    pages.) 


Cincinnati  v.  Whetstone,  210,  218 
Cincinnati  v.  White  Lead  Co.,  266 
Cincinnati  v.  Wilder,  189,  269 
Cincinnati  v.  Willen,  2 
Cincinnati  v.  Williams,   209,  210, 

211,  218 
Cincinnati  v.  Withers,  50 
Cincinnati  v.  Wright,  122 
Cincinnati  v.  Wynne,  214,  264 
Cincinnati    &    Wooster    Turnpike 

Co.  v.  Cincinnati,  123,  765 
Cincinnati  College  v.  Nesmith,  153 
Cincinnati,     etc.,    R.     R.     Co.     v. 

Burski,   684 
Cincinnati  Gas  Light  and  Coke  Co. 

V.  State,  661 
Cincinnati  Gas  Light  and  Coke  Co. 

V.  Avondale,   657,  659,   662,  670 
C.  H.  &  D.  Ry.  Co.  v.  Murphy,  313, 

682 
C.  H.  &  D.  R.  R.  v.  Sullivan,  674, 

678 
C.  H.  &  D.  R.  R.  v.  Bowling  Green, 

674,   675,   676,   677 
Cincinnati  Northern  R.  R.  v.  Cin- 
cinnati, 682 
Cincinnati    Southern    Railway    v. 

Haas,  83 
Cincinnati   Street  Railway  Co.   v. 

Cincinnati,  145,  154 
Cincinnati   Street  Railway  Co.   v. 

C.  H.  &  D.  R.  R.,  698 
Cincinnati   Street  Railway  Co.  v. 

Fullbright,  702 
Cincinnati   Street  Railway  Co.  v. 

Horstman,    704 
Cincinnati  Street  Railway  Co.  v. 

Lewis,  320 
Cincinnati   Street  Railway  Co.  v. 

Smith,  114,  115,  147,  148,  148a, 

151,  314,  342,   343,   344 
Cincinnati  St.  Ry.  Co.  v.  Snell,  143a 
Cincinnati   Telephone  Co.  v.  Cin- 
cinnati, 715,  718,  720 
Circleville  v.  Neuding,  117a 
Circleville  v.   Sohn,  117,  119,  121 
Circleville  v.   Throne,  329 
Circleville  L.  &  P.  Co.  v.  Buckeye 

Gas  Co.,  320,  670 
Citizens'   Light   and   Heat   Co.   v. 

Springfield,  480 
City  v.  Davis,  273 
City  v.  McDermott,  254 
City  v.  Schneider,  266 
Clamp  Ex  parte,  75 
Clapp  v.  Marice  City,  281 
Clarke  v.  Cleveland,  102 
Clark  v.  Commissioners,  513 


Clark  v.  Fry,  46,  115c,  312 

Clark  v.  Lucas  Co.,  513 

Clarke  v.  Thomas,  479 

Clemens  v.  Dayton,  121 

Clements  v.  Norwood,  264 

Clements  v.  Cincinnati,  143 

Clement  v.  City,  151,  154 

Clemmer  v.  Cincinnati,  200,  223 

Cleneay  v.  Norwood,  206 

Cleveland  v.  Beaument,  246 

Cleveland  v.  Bryan,  53 

Cleveland  v.  Clements  Bros.  Co., 
374 

Cleveland  v.  Cleveland  R.  R.  Co., 
699 

Cleveland  v.  Cuyahoga,  etc.,  Soci- 
ety, 92,  97 

Cleveland  v.  Denison,  62 

Cleveland  v.  Heisley,  39,  158,  159 

Cleveland  v.  Hyland,  207,  208 

Cleveland  v.  Jewett,  451 

Cleveland  v.  King,  117a 

Cleveland  v.  Kink,  117 

Cleveland  v.  Lenze,  53,  313,  474 

Cleveland  v.  Lovelle,  64 

Cleveland  v.  Malm,  47 

Cleveland  v.  Payne,  119,  120,  121, 
389 

Cleveland  v.  R.  R.  Co.,  186,  699 

Cleveland  v.  Ry.  Co.  113,  143, 
143a,  153 

Cleveland  v.  Standard  Bag  & 
Paper  Co.,  246 

Cleveland  v.  State  Bank,  44 

Cleveland  v.  Stofer,  120 

Cleveland  v.  Wick,  262 

Cleveland  &  Cincinnati  R.  R.  Co. 
v.  Cincinnati,  142 

Cleveland  City  Ry.  v.  Cleveland, 
147 

Cleveland  City  Ry.  v.  First  Nat. 
Bank,  702 

Cleveland  Electric  Ry.  Co.  v. 
Board  of  Equalization,  794 

Cleveland  Elec.  Ry.  Co.  v.  Cleve- 
land, 145,  148a 

Cleveland,  etc.,  Ry.  v.  Barriss,  62, 
143a,  144 

Cleveland  Ilium.  Co.  V.  Hitchens, 
509a 

Cleveland  Telephone  Co.  v.  Cha- 
grin Falls,  715 

Clifton  v.  Cincinnati,   264 

Cline  v.  Kirkbride,  46 

Cline  v.  Springfield,  657 

Clock  Co.  v.  Commissioners,  373a 

Coates  v.  Norwood,  186,  187 

Cohen  v.  Cleveland,  208 


874 


TABLE  OP   CASES. 


(References    are    to    pages.) 


Coit  v.  Columbus,  186 

Colburn   v.    Newfarth,    509a,    510, 

511 
Colby  v.  Toledo,  62,  84,  91 
Cole  v.  Hunter,  204 
College  v.  State,  789 
Collier  v.  Johnson,  208 
Collins   v.    Cleveland,    53 
Collins  v.  Hatch,  44,  51 
Collins  v.  Millen,  479 
Columbus  v.  Agler,  113,  184 
Columbus  v.  Barr,  317 
Columbus  v.  Bidlingmeier,  96 
Columbus  v.  Board  of  P.  S.,  372a, 

373,  373a 
Columbus   v.   Bohl,   175,   248,   345, 

346 
Columbus  v.  Cole,  809a 
Columbus   v.    Columbus   Gas   Co., 

114,  669 
Columbus  v.  Dunnick,  543 
Columbus  v.  Federal  Gas  &  Fuel 

Co.,  317,  343,  345,  480 
Columbus  v.  Glacken,  809c 
Columbus  v.   Heating  &  Lighting 

Co.,  57 
Columbus  v.  Jaeger,  118,  245 
Columbus  v.  Jeffrey,  50a,  50b,  75, 

77,  809a,  809b 
Columbus  v.  Kauffman,  663 
Columbus  v.  Lazarus,  206 
Columbus   v.   Penrod,   115a,   117a, 

119 
Columbus  v.  Railroad,  699 
Columbus  v.  Ry.  Co.,  44 
Columbus  v.  Reinhard,  582 
Columbus  v.  Street  Railroad,  147 
Columbus  v.  Schneider,  44,  62,  266 
Columbus  v.    Slyh,   184,   185,   186, 

223 
Columbus  v.  Sohl,  223 
Columbus  v.  Williard,  211 
Columbus,  etc.,  Co.  v.  Freeland,  46 
Columbus,   etc.,   Ry.   Co.   v.    Cole, 

711a 
Commissioners  v.  Bd.  P.  W.,  529 
Commissioners  v.  Cambridge,  310, 

313,  315,  321 
Commissioners  v.  Mannix,  789 
Commisioners  v.  R.  R.  Co.,  822 
Commissioners    v.    Ry.    Co.,    113, 

755,  756 
Commissioners  v.  Rhoades,  375 
Commissioners  v.  State,  112 
Commissioners  v.  Young,  222,  760 
Compton  v.  Johnson,  151 
Comstock  v.  Nelsonville,  173,  174, 

176,  351,  372 


Conger  v.  Barker,  479 
Conneaut  v.  Naef,  117a 
Conner  v.  Cincinnati,  254,  273 
Connor  v.  Sisters  of  the  Poor,  631 
Consolidated  Street  Railway  v.  To- 
ledo Street  Railway,  153 
Conwell  v.  Sears,  806 
Cook  v.  Gilpin,  260 
Coombs  v.  Lane,  315 
Cooper  v.  Van  Wert,  770 
Cope  v.   Wellsville,   175 
Coppin    V.    Herrmann,    346,    372a, 

373,  652 
Cordes  v.  Brooks,  233 
Cordeman  v.  Cincinnati,  245 
Corry  v.  Campbell,  266 
Corry  v.  Cincinnati,  39,  209,  211, 

212,  223,   262,   343 
Corry  V.  Folz,  186 
Corry  v.  Gaynor,  182,  184,  222,  223, 

263,  265,  478 
Corthell  v.  State,  748 
Costello  v.  Wyoming,  2 
Cotter  v.  Doty,  6,  51,  63,  480 
Counterman  v.  Dublin  Tp.,  Q96 
Court  of  Common  Pleas  v.   Sear- 
gent,  506 
Cox  v.  Lancaster,  236,  744 
Craig  v.  Heis,  264 
Crandall  v.  State,  50 
Crane  Twp.  v.  Antrim  Twp.,  641 
Crawford  v.  Cincinnati,  190 
Crawford  v.  Crawford,  260 
Crawford  V.  Delaware,  115b,  133, 

208,  210 
Crawford  v.  Madigan,  344,  345 
Creighton  v.  Scott,  186,  263 
Crippen  v.  Ohio  University,  747 
Crofton  v.  State,  46,  47 
Croll  v.  Franklin,  6,  31,  33,  481 
Crossley  v.  Findlay,  182,  190 
Crumbaugh  v.  Kugler,  569 
Cummings  v.  Fitch,  159 
Cummings  v.  Toledo,  245 
Cupp  v.  Comm'rs,  207 
Curtiss  v.  McDougal,  7 
Custer    v.    New    Philadelphia,    46, 
116,  117 


D. 


Daiber  V.  Scott,  128,  745 
Daiber  v.  Toledo,  191 
Dailey  v.  State,  115a 
Dalrymple  v.   State,  315,  805,  806 
Dalzell,  etc.,  Co.  v.  Findlay,  177 


TABLE   OF    CASES. 


875 


(References    are    to    pages.) 


Dalzell,  Gilmore  and  Leighton  v. 

Findlay,  et  al.,  664 
Danks  v.  Phares,  184,  185,  186 
Davis    v.    Camp    Meeting    Associ- 
ation, 789 
Davis  v.  Cincinnati,  252,  255,  264, 

265 
Davy  v.  Hyde  Park,  659 
Dawson  v.  State,  504 
Day  v.  Railway  Co.,  145,  152 
Dayton  v.  Bauman,  124,  180,  181, 

202,  262 
Dayton  v.  City  Ry.  Co.,  147 
Dayton  v.  Cooper  Co.,  460 
Dayton  v.  Harmon,  113 
Dayton  v.  Pease,  119,  329,  389 
Dayton  v.  Ry.  Co.,  148a,  343 
Dayton  v.  Taylor's  Adm'r,  245,  246 
Dayton  &  U.  Ry.  Co.  v.  Traction 

Co.,  142 
Deatrick  v.  City  of  Defiance,  43, 

44,  450,  548 
Debolt    v.    Cincinnati    Township, 

513,  643 
Defiance  v.  Council,  176,  344,  345, 

347,  468 
Defiance  v.  Gas  &  Electric  Co.,  46, 

115c 
Defiance  v.  Schmidt,  277,  278,  282 
Defiance   Water    Co.    v.    Defiance, 

176,  345 
Deming  v.  Cleveland,  46,  58,  66 
Dennis  v.  Simon,  139 
Detmers  v.  Columbus,  236 
Detroit  v.- Railway  Co.,  143 
Detroit  Ry.  Co.  v.  Detroit,  143 
Deutch  v.  Chemical  Co.,  129 
Deuyer  V.  Schonert,  228 
Dexter  v.  Raine,  et  al,  845 
Dick  v.  Toledo,  129,  190,  195,  230, 

269 
Diehm  v.  Cincinnati,  119 
Dietz  v.  Traction  Co.,  142,  143,  148 
Dillenbach  v.  Xenia,  115a 
Directors,  etc.,  v.  Toledo,  7 
District  of  Columbia  v.  Woodbury, 

119 
Dixon  v.  Cincinnati,  195 
Dodge  v.  Gridley,  528 
Dodson  v.  Cincinnati,  82,  92,  268, 

827 
Dodsworth  v.  Cincinnati,  187,  195, 

262 
Doll  v.  Barr,  80 
Doll  v.  State,  177 
Dominick  v.  State,  581,  806 
Donohue  v.  Brotherton,  180,  183, 

185,  214,  264 


Doppes  v.  Cincinnati,  227 
Doppas  v.  R.  R.  Co.,  131,  135 
Doren  v.  Horton,  129,  130,  744,  745, 

746 
Dorgan  v.  Columbus,  314,  342,  344, 

405,  509a,  510,  511 
Dorsch  v.  Glass  Co.,  134 
Douglass  v.  Cincinnati,  187,  264 
Douglas  v.  Pike  County,  345 
Drake  v.  Cincinnati,  204 
Dreake  v.  Beasley,  265 
Drolesbaugh  v.  Hill,  505 
Drott  v.  Riverside,   176,   312,   315 
Duffy  v.  Norwood,  129,  188,  191 
Dunham  v.  Opes,  158,  159,  275,  290 
Durbin  v.  Napoleon,  117 
Dutoit  v.  Doyle,  479 
Dutten  v.  Village  of  Hanover,  8 


E. 


Eagle  White  Lead  Co.  v.  Cincin- 
nati, 129,  208 
Earhart  v.  Village  of  Lebanon,  583 
Early  v.  Doe,  90,  105,  150,  318,  374 
East  Cleveland  R.  R.  v.  Rosecrans, 

50b,  313 
East  End  B.  &  T.  Co.  v.  Cleveland, 
115a,  194,  200,  207,  208,  209,  691 
Easton  v.  Hyde  Park,  174,  175 
Ebbert  Brew.  Co.  v.  State,  806 
Edis  v.  Butler,  48,  314,  616 
Edwards  v.  Columbus,  227 
Effinger  v.  State,  804 
Ehni  v.  Columbus,  182,  236,  263 
Eichenlaub  v.  State,  569 
Electric  Co.  v.  Toledo,  665,  666 
Elevator  Co.  v.  Cincinnati,  58 
Elshoff  v.  Deremo,  776 
Elster  v.  Springfield,  56,  58,  115a, 

116,  176 
Ely  v.  Willard,  809a 
Elyria  v.  Ry.  Co.,  114,  344 
Emery  v.  Coles,  775 
Emery  v.  Elyria,  48,  49 
Emmert  v.  Elyria,  174,  214 
English  v.  Trustees  So.  Ry.,  118 
Enyart  v.  Hanover  Tp.,  845 
Erie  Ry.  Co.  v.  Youngstown,  87,  92 
Erkenbrecher    v.    Cincinnatil,    58, 

349,  503,  513 
Ermston  v.  Cin.,  349,  503,  513 
Ernst  v.  Kunkle,  181 
Esch  v.  Elyria,  45,  64,  324 
Eshelby   v.    Board    of   Education, 
339,  340 


876 


TABLE   OF   CASES. 


(References    are    to    pages.) 


Euclid  Ave.,  In  re,  315 
Evans  v.  Cincinnati,  114,  265 
Evans  v.  State,  571 
Evansville  v.  Dennett,  278 
Exchange  Bank  v.  Hines,  515 
Extension   of   Lower   River   Road 
Co.  v.  Cincinnati,  124 


b\ 


Famuliner  v.  Anderson,  533 

Fairview  v.  Giffee,  42 

Farmer  v.  Telephone  Co.,  714 

Farrell  v.  Cincinnati,  227 

Fath  v.  Clifton,  321 

Federal  Gas  &  Fuel  Co.  v.  Town- 
send,  115a 

Federer  v.  Dayton,  319 

Feigert  v.  State,  505 

Felton  v.  City,  697a 

Fenner  v.  Cincinnati,  87,  105,  199, 
200,  208 

Fenton  v.  Cheseldine,  60 

Fergus  v.  Columbus,  176,  194,  342, 
346,  347,  348,  373a,  381,  464 

Ferguson  v.  Miami  Powder  Co., 
840 

Feuerstein  v.  Jackson,  209,  210, 
211 

Fidelity,  etc.,  Co.  v.  Hahn,  479 

Fike  v.  France,  99 

Fike  v.  State,  544,  581,  805,  809 

Findlay  v.  Frey,  181,  193 

Findlay  v.  Parker,  177 

Findlay  v.  Pendleton,  173,  174,  329, 
503 

Findlay  Gas  Light  Co.  v.  Findlay, 
158,  159,  347,  657,  661,  666,  668 

Finnell  v.  Howell,  265 

Finnell  v.  Kates,  261 

Finnical  v.  Village  of  Cadiz,  583 

Fitzpatrick  v.   Bromweli  Co.,  344 

Fitzsimmons  Tel.  Co.  v.  Cincin- 
nati, 714 

Flatau  v.  Mansfield,  50,  75,  78,  79, 
571 

Fletcher  v.  State,  45,  569 

Fliehman  v.  C.  C.  C.  &  St.  L.  Ry., 
683 

Ford  v.  Toledo,  205,  206,  254 

Fogarty  v.  Cincinnati,  211 

Folsom  v.  Haas,  537 

Folz  v.  Cincinnati,  183,  268 

Foote  v.  Cincinnati,  92 

Foote  v.  R.  R.  Co.,  93 

Forsythe  v.  Winans,  342 


Fosdick   v.   Perrysburg,   277,   478, 

481,  529 
Fostoria  V.  Fox,  44,  347 
Frame  v.  State,  803 
Frampton  v.   Sims,  227 
Franklin  v.  Baird,  284,  373 
Franklin  v.  Croli,  12,  27 
Frank  v.  Cincinnati,  45,  74 
Fratz  v.  Mueller,  799,  800 
Frazer  v.  Siebern,  268 
Frederick  v.  Columbus,  45,  54,  389 
Freeman  v.  Hunter,  262 
Fremont  v.  Dunlap,  120 
Fremont  v.  Hayes,  265,  266,  270 
Fremont  v.  June,  54,  460 
French  v.  Barber  Asphalt  Co.,  190, 

203 
Frevert  v.  Finfrock,  211,  212,  220 
Frey  v.  Findlay,  187,  228,  269 
Frey  v.  Millikin,  205,  206 
Fricke  v.  Cincinnati,  263 
Fridman  v.  Norwood,  192,  262,  263 
Friedman  v.  Cincinnati,  345,  348, 

480 
Fritter  v.  Bohl,  347 
Fuller  v.  Railway,  702 
Fulton  v.  Columbus,  809a 
Fulton  v.  Mehrenfeld,  128,  744 


G. 


Gable  v.  Toledo,  119 

Gage  v.  Payne,  505 

Gall  v.  Cincinnati,  60 

Gallagher   v.    Johnson,    148a,   151, 

343,  346 

Gallipolis  v.  Trustees,  54,  461,  463 
Gallup  v.  Lorain  Co.,  528 
Gannon  v.  St.  Ry.  Co.,  50b 
Garder  v.  Fayette  Co.,  827 
Garvin  v.  Columbus,  83,  87 
Gas  &  Fuel  Co.  v.  Chillicothe,  657, 

659,  662 
Gas  &  Water  Co.  v.  Elyria,  44,  290, 

312,  319,  320,  342,  343,  345,  373a 
Gas  Co.  v.  Lima,  665,  670 
Gas  Co.  v.  Tiffin,  80 
Gas  Fuel  Co.  v.  Andrews,  673 
Gas  Light  &  CoKe  Co.  v.  Columbus, 

209,  662 
Gas  Light  &  Coke  Co.  v.  Zanesville, 

344,  658 

Gates  v.  Beckwith,  165 
Gates  v.  Tp.  Co.,  765 
Gault  v.  Columbus,  183,  345 
Gawn  v.  Wilson,  211 


TABLE   OF    CASES. 


877. 


(References    are    to    pages.) 


Gaylord  v.  Hubbard,  794 

Geib  V.  Cleveland,  208 

Geier  v.  Cincinnati,  2 

Gelpke  V.  Dubuque,  277 

Gerke  v.  Purcell,  789 

German  Ev.  Pr.  Com.  v.  Brooks, 

789 
Germantown  v.  Basore,  544,  571 
Gest  v.  Cincinnati,  263,  264,  265, 

268 
Gibson  v.  Cincinnati,  192,  227,  747 
Gibson  v.  Norwalk,  93 
Gibson  v.  Zanesville,  451,  588 
Gibson  V.  Zumstein,  794 
Giesy  v.  R.  R.  Co.,  82,  93 
Giffin  v.  Brooks,  479 
Gilfillan  v.  Koke,  105,  374 
Gillmore  V.  Lewis,  470 
Gilmour  V.  Pelton,  188 
Gitsky  v.  Newton,  329,  503 
Glaser  v.  Cincinnati,  45,  50,  75 
Glenville  v.  Englehart,  505 
Glidden    v.    Cincinnati,    143,    148, 

153 
Goblet  Co.  v.  Findlay,  657 
Gobrecht  V.  Cincinnati,  327 
Gonnigle  v.  Arthur,  223 
Goodale  V.  Fennell,  182,  478 
Goodall  v.  City,  227 
Goodall  v.  Gerke  Brewing  Co.,  827 
Goodin  v.  Canal  Co.,  93 
Goodloe  v.  Cincinnati,  208 
Gorgas  v.  Blackburn,  8 
Graham  v.  Stein,  405,  509a,  512 
Grant  v.  Brouse,  177 
Grant  v.  Hyde  Park,  89,  92,  130, 

211 
Green  v.  Cincinnati,  199,  267 
Green  v.  Muskingum  Co.,  45        — 
Greene  v.  Woodland  Ave.,  etc.,  St. 

R.  R.  Co.,  et  al.,  702 
Greenville  v.  Anderson,  505 
Griswold  v.  Pelton,  193,  268 
Groesbeck  v.  Cincinnati,  266 
Groveport  v.  Bradfield,  119,  120 
Grover  Hill  v.  McClure,  42 
Grunkemeyer  v.  Johnston,  121 
Guckenberger  v.  Dexter,  284,  348 
Guckenberger  v.  Henderson,  290 
Guernsey  Co.   v.   Cambridge,   105, 

503 
Gwynne  v.  Cincinnati,  130 


H. 


Hafer  v.  Cincinnati,  328 
Hagenschneider,  ex  parte,  569 


Hagerty  v.  Columbus,  264 

Haines  v.  Lindsey,  534 

Hall  v.  Kleeman,  776 

Hall  v.  Siegrist,  1,  19 

Hallock  v.  Columbus,  345,  346 

Halpin  v.  Cincinnati,  513 

Ham  v.  Kunzi,  479 

Hamilton  v.  Ashbrook,  85,  118 

Hamilton  v.  Gas  Co.,  62,  662,  668 

Hamilton  v.  State,  827 

Hamilton  v.  Stbt.  R.  B.  Hamilton, 

479 
Hamilton,    etc.,    Electric    Transit 

Co.  v.  Hamilton,  114,  146 
Hamilton  G.  &  C.  Traction  Co.  v. 

Parish,  113,  133,  143,  152,  153 
Hamilton  G.  &  C.  Traction  Co.  v. 

Traction  Co.,  142,  143,  707 
H.  G.  &  C.  Traction  Co.  v.  Transit 

Co.,  143a,  145,  148 
Hamilton  Gas  Light  and  C.  Co.  v. 

Hamilton,  663 
Hamilton  Street  Railway  v.  Ham- 
ilton Transit  Co.,  148 
Hamlin  v.  State,  26 
Harbeck  v.  Toledo,  82,  189 
Harlow  v.  City,  211 
Harlow  v.  State,  583,  806 
Harmon  v.  Stockwell,  531 
Harmon  v.  Whittemore,   105,   374 
Harner  v.  Columbus,  etc.,  Railway 

Co.,  153 
Harrison    v.    Mt.    Auburn    Cable 

Railway,  153 
Harrison  v.   Sabina,   90,   200 
Hart  v.  Devereux,  313,  682 
Harte  v.  Bode,  535 
Hartman  v.  Hunter,  265,  270,  271 
Hartwell  v.  Building  Association, 

206 
Hartwell  v.  R.  R.  Co.,  58,  245 
Hartzell  v.  Alliance,  185 
Haskins  v.  Cin.  Consol.  Ry.,  148a, 

344 
Hastings  v.  Columbus,     105,     254, 

263,  265,  266,  267,  318,  321,  374 
Hatch  v.  Cincinnati,  513,  543 
Hatch  v.  R.  R.  Co.,  93,  115b 
Hattersly  v.  Waterville,  143a,  146, 

151     . 
Hauck  v.  State,  365,  366 
Haunts  v.  Lanman  Co.,  539b 
Hauss    Elec.    Co.    v.    Jones    Bros. 

Elec.  Co.,  715 
Haviland  v.  Columbus,  190 
Hayes  v.  Board  of  Education,  284 
Hayes  v.  Jones,  222,  223 
Hayes  v.  Park  Co.,  130 


878 


TABLE   OF   CASES. 


(References    are    to    pages.) 


Hayes  v.  Telephone  Co.,  115a 

Hayes  v.  Yost,  800 

Haynes  v.  Hillsboro,  805 

Hays  v.  Cincinnati,  182,  214,  227, 

228 
Hays  v.  Galion  Gas  Co.,  668 
Hays  v.  St.  Mary,  46,  51 
Heck  v.  Findlay,  329,  503 
Heck  v.  State,  479 
Heddleston  v.  Hendricks,  116 
Heelman  v.  State,  45 
Heminger  v.  Cleveland,  52,  550 
Hendrickson  v.  Toledo,  83,  91,  224, 

229,  231 
Hengst  v.  Cincinnati,  77,  312,  314 
Henrietta     Twp.     v.     Brownhelm 

Twp.,  641 
Henrietta   Twp.    v.    Oxford    Twp., 

641 
Henry  v.  Cincinnati,  113,  115b,  716 
Hensly  v.  Hamilton,  281,  290,  320, 

321,  323,  343,  346 
Herman  v.  Columbus,  185,  223,  228 
Herman  v.  State,  ex  rel.,  245,  373 
Herrick  v.  Cleveland,  117,  122,  344, 

347 
Herrmann  v.  Cincinnati,  276 
Hertenstein     v.     Herrmann,     345, 

348,  372     « 
Herzog  v.  Railway  Co.,  115b 
Hess  v.  Lupton,  46 
Hewitt  v.  Cleveland,  117a,  119 
Hickok  v.  Hine,  58,  756 
Hickox  V.  Cleveland,  208 
Higgins  v.  Drucker,  374 
Hildebrand    v.    Toledo,    205,    206, 

224    254 
Hill  v.  Cleveland,  233 
Hill  v.  Durr,  98 

Hill  V.  Higdon,  158,  180,  181,  264 
Hillier  v.  State,  581,  592 
Hirschman  v.  Pratz,  800 
Hites  v.  Dayton,  60 
Hogg  v.  Zanesville  C.  &  M.  Co.,  1 
Holbrook  v.  Toledo,  373,  374 
Hollingsworth  v.  State,  126,  127 
Hoist  v.  Roe,  51 
Holtzkemper  v.  Langloth,  840 
Hoppe  v.  Parmalee,  313 
Hopple  v.  Cincinnati,  200 
Horn  v.  Columbus,  270 
Horstmann    v.    St.   Ry.,    44,    143a, 

148,  148a,  157,  341,  343,  344,  345, 

516 
Hotel  Alley,  In  re,  134,  136 
Hotel  Co.  v.  Branahan,  79 
House  of  Refuge  v.  Ryan,  353,  357 
Howard  v.  State,  443 


Howard  v.  Whetstone  Tp.,  610 
Hubard  v.  Fitzsimmons,  278 
Hubbard    V.    Norton,    6,    182,    267, 

313,  375,  478,  480 
Hubbard  v.  Sandusky,  372a 
Hubbard  v.  Toledo,  58 
Huber  v.  Gazley,  745,  747 
Huddleson  v.  Ruffin,  52,  550,  553, 

591 
Hueston  v.  R.  R.  Co.,  92 
Hughes  v.  Clyde,  375 
Hugh     Printing     Co.     v.     Deputy 

State  Supervisors,  etc.,  373 
Hulbert  v.  Mason,  19,  27 
Hulburt  v.  Fitzsimmons,  44 
Huling   v.   Huffman,   751 
Hulse  v.   State,   534 
Hume  v.  Traction  Co.,  157,  706 
Humphreys  v.  Little  Sisters  of  the 

Poor,  789 
Hunt  v.  Gaylor,  506 
Hunt   V.    Hunter,   203,    238,   240 
Hunter  v.  Austin,  158,  159 
Huntsville  Local  Option  Election, 

In  re,  315,  805 
Huston  v.  Franklin,  381 
Hutchinson  v.  Lima,  480,  502 
Hyde  Park  v.  Grant,  102 


I. 


Ickes  v.  State,  503 

Illuminating  Co.  v.  Mt,  Gilead, 
115c 

Inclined  Plane  R.  R.  Co.  v.  Pfan, 
212 

Inclined  Plane  Ry.  Co.  v.  Cincin- 
nati, 100 

Interstate  Telephone  Co.  v.  Cincin- 
nati, — ' 

Inwood  v.  State,  581 

Ireton  Bros.  v.   Traction  Co.,  152 

Iron  R.  R.  v.  Ironton,  82,  84,  314 

Irwin  v.  Greenville,  174,  195,  275, 
284,  285,  372a 


J. 


Jackson  v.  Jackson,  208 
Jackson  v.  Washington,  806 
Jacobs  v.  Cincinnati,  208,  273 
Jaeger  v.  Burr,  181,  190,  267 
Jameson  v.  Cincinnati,  502 
Jeffries  v.  Defiance,  64 


TABLE   OF    CASES. 


879 


(References    are    to    pages.) 


Jessings    v.    Columbus,    188,    224, 

266 
Jiha  v.  Barry,  364a 
Johns  v.  Cincinnati,  118,  329 
Johnson  v.  Avondale,  205,  245,  247, 

254 
Johnson   v.    Cincinnati,    121,    151, 

344 
Johnson  v.  Elyria,  320 
Johnson  v.  Farley,  343,  346 
Johnson  v.  West  Side  St.  Ry.,  151, 

344 
Jonas  V.  Cincinnati,  263,  539b 
Jones  v.  Commissioners,  451,  513 
Jones  v.   Davis,   801 
Jones  v.  FranKlin  Co.,  113 
Joyce  v.  Barron,  199,  200,  268 
Julius,  In  re,  75,  78 


K. 


Kappes  v.  State,  581,  583,  804,  806 
Karb  V.  State,  329 
Kaufman  v.  Hillsboro,  804 
Keating  v.  Cincinnati,  208,  210 
Keck  v.  Cincinnati,  60,  76,  324 
Keefe  v.  R.  R.  Co.,  143,  747 
Keehn  v.  Wooster,  275,  277,  278 
Kelley  v.  Cincinnati,  329,  382,  383, 

391,  509a,  510 
Kelley  v.  Columbus,  117a 
Kellner  v.  Dayton,  210 
Kelly  v.  Cleveland,  195,  268,  269 
Kelly  v.  State,  505 
Kemper  v.  St.  Bernard,  228 
Kemper  v.  Home,  246 
Kendall  v.  Scheve,  471 
Kendrick  v.  Farquhar,  789 
Kent  v.  Dana,  278,  281 
Kerlin   Bros.   v.    Toledo,   103,   104, 

104a,  105   281,  313,  319,  321,  373, 

373a,  539b,  827. 
Kerr    v.    Bellefontaine,    173,    174, 

663,   664 
Kerr  v.  Commissioners,  133 
Kerr  v.  Hinkle,  510,  511 
Kinbleawecz  v.  State,  364 
King  v.  Nichols,  504,  506 
Kinnear  Mfg.  Co.  v.  Beatty,  133, 

135,   136. 
Kinney  v.  Toledo,  53,  391 
Kirby  v.  Winton  Place,  199,  268 
Kirchner  v.  Cincinnati,  174 
Kirker  v.  Cincinnati,  328,  329,  503 
Kissell  V.  Columbus  Grove,  348 


Kittredge  v.  Cincinnati,  120 
Klein  v.  Cincinnati,  187,  233 
Kleister  v.  Dayton,  117 
Klopfer  v.   Sunderland,  174 
Knabe  v.  Cincinnati,  206 
Knauss  v.  Columbus,  169,  290,  316, 

372 
Knecht  v.  Cincinnati,  199,  268 
Knorr  v.  Board  of  Education,  340, 

513. 
Knorr  v.  Cincinnati,  183,  263 
Knorr  v.  Miller,  151,  157,  343,  346, 

347,  709 
Knox  Co.  v.  McComb,  529 
Koch  v.  State,  581 
Kopp  v.  B.  &  O.  S.  W.  Ry.  Co.,  710 
Kraft  v.  Cincinnati,  60,  76 
Kratochwill    v.    West    Carrollton, 

212 
Kreidler  v.  State,  480 
Krickenberger  v.  Wilson,  809a 
Krumberg  v.   Cincinnati,   86,   194, 

233,  262 
Kubach  v.  State,  583,  804 
Kuhn  v.  Cleveland,  115b 
Kuhn  v.  Remmler,  776 
Kumler  v.  Silsbee,  157 
Kummer  v.  Cincinnati,  202 
Kumpf  v.  Delhi,  805 


L.  B.  Society  v.  Lewis,  1 

L.   &  N.   R.  R.   Co.  v.  C,  N.  O.  & 

T.  R  Ry.  Co.,  115b 
L.  S.  &  M.  S.  Ry.  Co.  v.  Ehlert,  313, 

682 
L.  S.  &  M.  S.  Ry.  Co.  v.  Elyria,  44, 

114,  115,  115a,  116,  131,  134,  342, 

682 
L.  S.  &  M.  S.  Ry.  Co.  v.  Johnston, 

682 
Lake  Shore  Elec.  Ry.  Co.  v.  Ma- 

jewski,  143a 
Lake  Shore  Foundry  v.  Cleveland, 

345,  373a 
Laird  v.  Cincinnati,  223,  228,  266 
Lancaster  v.  Miller,  44,  104a,  109, 

176,  351,  372,  372a,  374 
Landis  v.  Darke  County,  346 
Landrock  v.  Columbus,  191 
Langley  v.  Gallipolis,  114,  747 
Lansmead  v.  Cincinnati,  205 
Lawrence,  ex  parte,  5,  480 
Lawrence  v.  Cincinnati,  460 


880 


TABLE   OF    CASES. 


(References    are    to    pages.) 


Lawrence  v.  Mitchell,  18 
Lawrence  Railroad  Co.  v.  Commis- 
sioners,  116 
Lebanon  v.  Warren  Co.,  747 
Le  Clercq  v.   Gallipolis,   104,   208, 

747 
Lederer  v.  State,  804 
Lee  v.  Smith,  742 
Lee  v.  State,  569 
Lee  v.  Sturges,  789 
Leger  v.  Warren,  471 
Lenman  v.  McBride,  33,  320 
Leibschutz  v.  Black,  53 
Leipsic  v.  Gerdeman,  120,  121 
Lembo  v.  State,  443 
Leonard  v.  Cassidy,  210,  211 
Lewis  v.  Cincinnati,  50b 
Lewis  v.  Kramer,  793 
Lewis  V.  Laylin,  112,  760 
Lewis  v.  State,  451 
Lewis  v.  Symmes,  184,  185,  345 
Lewis  v.  Taylor,  185 
Library  Ass'n  v.  Pelton,  789 
Life  Ins.  Co.  v.  Cuyahoga  Co.,  278 
Lillard  v.  Ampt,  308,  316,  455 
Lima  v.  Cemetery  Ass'n,  180,  188, 

266,    789 
Lima  Gas  Co.  v.  Lima,  175,  312, 

659,  662 
Lima  v.  McBride,  137,  222,  311 
Linn   St.   Bldg.  Ass'n  v.  Morgan, 

265 
Lippelman  v.  Cincinnati,  211,  329 
Little  v.  State,  50a 
Little  Miami  R.  R.  v.  Naylor,  683 
Little  Miami  R.  R.  Co.,  et  ah,  v. 

Dayton,  82 
Little  Miami  Ry.  Co.  v.  Greene  Co., 

115c 
Littleton,  v.    Infirmary    Directors, 

511 
Lloyd  v.  Dollison,  804,  806 
Lloyd  v.  Hulbert,  130 
Lloyd  Booth  Co.  v.  Mahoning  Co., 

115b 
Locke  v.  Cincinnati,  186,  192,  228 
Lockland  v.  Smiley,  128,  130,  744, 

745 
Lockyear  v.  Covert,  50b 
Lodge  v.  Hayslip,  789 
Loeb   v.   Columbia   Township,    43, 

275 
Logan  Nat.  Gas  Co.  v.  Chillicothe, 

539b,    659 
Longworth   v.   Cincinnati,   58,   83, 

84,  194,  262,  263 
Lorain  v.  Rolling,  366,  432 


Lorain  Plank  Road  v.  Cotton,  479, 

528 
Lorain  St.  Ry.  Co.  v.  Sinning,  93 
Lotze  v.  Cincinnati,  210,  212 
Lougee  v.  State,  591 
Lough  v.  Machlin,  129,  133 
Louisville  Trust  Co.  v.  Cincinnati, 

143a,  708 
Lowden  v.  Cincinnati,  265,  313 
Lowry  v.  Cincinnati,  176 
Ludlow  v.  Johnston,  479,  528 
Luetzler  v.  Perry,  588 
Lunkenheimer  v.  Cincinnati,  129 
Lynde  v.  Winnebago  Co.,  278 


M. 


Macklin  v.  Telephone  Co.,  714 
Macneale  v.  Cincinnati,  129 
Madden  v.  Ry.,  115b,  136 
Madden  v.  Smeltz,  319,  804 
Madisonville  v.  Tp.  Co.,  126,  764 
Makemson  v.  Kauffman,  153,  222, 

223 
Makley  v.  Whitmore,  195,  264 
Malone  v.  Toledo,  113 
Maloy  v.   Marietta,   181 
Manhattan  Trust  Co.  v.  Gas  Co., 

657 
Manns  v.  Cincinnati,  191 
Mansfield  v.  Balliett,  82,  92,  246 
Mantell  v.  Telephone  Co.,  115a 
Many  v.  Cleveland,  373a 
Marietta  v.  Fearing,  312 
Marietta  v.  Slocomb,  266 
Markle  v.  Akron,  49,  63,  313,  5G6 
Markley  v.  Mineral  City,  62,  537 
Marmet  v.  State,  2,  50a,  50b,  56, 

74,  76,  114,  158 
Marsh  v.  Hartwell,  177 
Marshall  v.  Wooster,  270 
Martin  v.  Bond  Hill,  210,  211,  212 
Martin  V.   State,   503 
Martindale  v.  State,  590 
Marvin  v.  State,  590 
Massa  v.  The  State,  8 
Mathers    v.    Cincinnati,    62,    143a, 

144,  151,  153,  345,  347 
Matthews  v.  Cincinnati,  191 
Matthews  V.  Toledo,  121 
Matthews  v.  Traction  Co.,  143,  148a 
Mauk  v.  Brundage,  329 
Mays  v.  Cincinnati,  60,  74,  75,  76, 

157,  158 
McArthur  v.  Franklin,  516 


TABLE   OF    CASES. 


881 


(References    are    to    pages.) 


McBride  v.  Akron,  117a 
McClain  v.  McKisson,  308,  311,  346, 

372a,  375,  452,   464 
McClain  v.   Simington,  504,  533 
McClelland  V.  Miller,  116 
McCloud    V.    Columbus,    105,    268, 

372,  373a 
McCormick     Harvesting    Machine 

Co.  V.   Sims,   791,   793 
McCortle  v.  Bates,  312,  822 
McCrea  V.  Washington,  314,  320 
McDonald  v.  Cincinnati,  85 
McGee  v.  Avondale,  199,  208,  209 
McGill  v.   State,  7 
McGlynn  v.  Toledo,  206,  207,  211, 

224,  228,  231,  262,  263,  266,  267 
McGonigale  v.  Defiance,  372 
McGovern  v.  Mt.  Vernon,  119 
McGreevy  V.  Board,  373 
McGrew   v.   Blmwood   Place,    174, 

175 
McGuire   v.   East   Cleveland,   236, 

319 
McHugh  V.  Cincinnati,  5,  480 
McLaughlin  v.  Stevens,  747 
McLean  V.  Cincinnati,  122 
McLean  v.  Electric  Light  Co.,  747 
McMackin  v.  Cincinnati,  375 
McMillan  v.  Watt,  775 
Meara  v.  Holbrook,  330 
Mechlem  v.  Cincinnati,  203 
Meek  v.  Pennsylvania  Ry.  Co.,  312, 

682 
Megrue  v.  Comm'rs,  683 
Meily  v.  Columbus,  429 
Meissner  v.  Toledo,  187,  233,  262, 

263,  376 
Merchant  v.  Waterman,  189 
Met.  Tr.  Co.* v.  Ry.  Co.,  529 
Metcalf  v.  Carter,  185,  191 
Meyer  v.  Dempsey,  442 
Meyer  V.  Muscatine,  278 
Meyers  v.  Cincinnati,  191 
Middleport  v.  Taylor,  119,  121,  122 
Milford  v.  Traction  Co.,  148a 
Millcreek  Valley  R.  R.  Co.  v.  St. 

Bernard,  114 
Millcreek  Valley  St.  Ry.  v.  Carth* 

age,  157 
Miller  v.  Bellefontaine,  544 
Miller  v.  Cincinnati,  115,  131,  134, 

206,  208 
Miller  v.  Directors,  511 
Miller  v.  Hixson,  278 
Miller  v.  Oehler,  542 
Miller  v.  Pearce,  90,  346,  348,  373, 

374 
Miller  v.  Railway  Co.,  143a 


Miler  v.  State,  48 

Miller  v.  Toledo,  205,  245 

Miller   v.   Weber,   93 

Miliikin  v.  Bowling  Green,  129 

Mills   v.    Norwood,    115,   174,   227, 

256,  273,  344,  346 
Mineral  City  v.  Render,  470 
Minor  v.  Board,  223,  227,  228 
Mitchell  Furniture  Co.  v.  Railroad, 

115b 
Mocker  v.  Cincinnati,  226,  268 
Mocker,  et  al.t  v.  Cincinnati,  269 
Moerder  v.  Fremont,  50b,  313 
Moerlein  Brew.  Co.  v.  Westmeier, 

264 
Mohn  V.  Collins,  39,  319 
Molitor  v.  State,  503,  575,  576 
Mondle  v.  Toledo  Plow  Co.,  116 
Monroe  v.  Collins,  515 
Monte  v.   Pabst,   804 
Moon  v.  Middletown,  121 
Mooney  v.  St.  Mary's,  118 
Moore  v.  Cassily,  329 
Moore  v.   Cincinnati,   6,  183,   373, 

480 
Moore  v.  Given,  800 
Moore  v.  Hoffman,  169,  344 
Moore  v.  Moore,  569 
Moore  v.  Vance,  479,  528 
Monter  v.  Cleveland,  116,  129 
Morehouse  v.  Norwalk,  56,  82 
Morgan  v.  Cleveland,  183 
Morgan  V.  Hudnell,  840 
Morgan  v.  Nolte,  64,  581 
Morgan  v.  Tighe,  543 
Morris  v.  Woodburn,  121 
Morrow  County,  etc.,  v.  Mt.  Gilead, 

■  315,  320,  662 
Mosler,  ex  parte,  817 
Mott  V.  Toledo,  116 
Mt.  Vernon  v.  State,  175,  185,  372 
Mudge  v.  Evanston,  263 
Murdock  v.  Cincinnati,  185 
Murphy  v.  Columbus,  75,  77 
Murphy  v.  Sims,  196,  202,  224,  259 
Murray  v.  Auglaize  Co.,  828 
Myers  v.  Toledo,  129,  745 


N. 


N.  C.  Harmony  Lodge  v.  Hagerty, 

503,   801 
Nail  &  Iron  Co.  v.  Furnace  Co.,  134 
Near  v.  Mt.  Auburn  Cable  Ry.,  152 
Neff  v.  Bates,  6,  182,  184,  189,  480 
Neff  y.  Cincinnati,  94,  196 


882 


TABLE  OF   CASES. 


(References    are    to    pages.) 


Neil  v.  Barron,  329 

Neubauer  v.  Bd.  Education,  176 

Neubert  v.  Toledo,  209 

Nevin  V.  Dayton,  228 

Newark  v.  Elliott,  103 

Newark  v.  Flatau,  50,  75,  79 

Newark  v.  Gas  &  Fuel  Co.,  657, 
662 

Newark  v.  Jones,  113,  118 

Newark  v.  Light  &  Power  Co.,  665. 

Newark  v.  McDowell,  113,  118,  756 

Newton  v.  Mahoning  Co.,  104,  105 

Newton  v.  Manufacturers'  Ry.  Co., 
62 

Newton  v.  Toledo,  174,  207 

Newton,  et  ah,  v.  Comm'rs,  106 

New  York  &  B.  Co.  v.  Hermann, 
652 

N.  Y.  Life  Ins.  Co.  v.  Cuyahoga  Co., 
277,  278 

Nicholson  v.  Maile,  345,  347 

Niefeld  V.  State,  571 

Nigh  v.  Keifer,  745 

Nitz  v.  Toledo,  60,  117a,  120,  121 

Nitzel  v.  St.  Bernard,  194,  252,  254 

Nolte  v.  Cincinnati,  209 

Norris  V.  Jasper,  266 

Norris  V.  State,  827 

Northern  Bank  v.  Porter  Town- 
ship, 278 

Norwalk  v.  Jacobs,  117a 

Norwalk  V.  Tuttle,  117a,  120 

Norwood  V.  Building  Ass'n,  203, 
237,  240 

Norwood  v.  Ogden,  262 

Nulson  v.  Cincinnati,  190 


Oberer  v.  State,  804 

O'Brien  v.  Cleveland,  45,  61,  322 

O'Connell  v.  Boyle,  504 

Ohio    Farmers'    Ins.    Co.    V.    New 

Philadelphia,  277,  281 
Ohio  State  Journal  v.  Brown,  317 
Ohliger  v.  Toledo,  121 
Ohliger  v.  Traction  Co.,  122 
O'Rourke  v.  State,  76 
Osborne  v,  Columbus,  391 
Otis  V.  Cleveland,  262 
Oviatt  v.  Akron  St.  Railroad  Co., 

143 


P.  C.  &  St  L.  R.  R.  v.  Cincinnati, 
683  * 


Paige  v.  Cherry,  58 
Parker  v.  Burgett,  222 
Parmalee  V.  Youngstown,  193 
Parrish  v.  Hamilton  G.  &  C.  Trac- 
tion Co.,  153 
Parrott  v.  C.  H.  &  D.  R.  R.,  683 
Parsons  v.  Columbus,  1,  115,  181 
Partridge  V.  Jones,  504,  533 
Peabody  v.   State,   505,   506 
Pears  v.  Cleveland,  117a 
Peat  v.  Norwalk,  120 
Pease  V.  Ryan,  344,  529 
Pelton  v.  East  Cleveland  Railroad, 

143,  148a 
Penn  Co.  v.  Wentz,  686 
Penquite  v.  Lawrence,  128 
Peppard    v.    Cincinnati,    343,    346, 

348 
Perin  v.  Carey,  62,  486a 
Perkins  v.  Zumstein,  800 
Perry  Co.  v.  R.  R. 'Co.,  118,  755, 

759 
Peters  v.  State,  590 
Petition  of  Ammer,  In  re,  809a 
Petition  of  Gorey,  In  re,  809i 
Petition  of  Wightman,  In  re,  809c 
Petition  for  Election,  In  re,  809a, 

809g 
Petition   for   Election   in   Dayton, 

In  re,  809a 
Petition  for  Election  in  Toledo,  In 

re,   809a,  809c,  809g 
Phifer  v.  Cox,  114 
Pfeiffer  v.  Green,  26 
Phillips  V.  Hunter,  793 
Picard  v.  Hughey,  668 
Pierce  v.  Bd.  of  Ed.,  528 
Pike  v.  Cummings,  203,  265 
Pirn  v.  Nicholson,  320 
Piqua  V.  Cron,  326,  543 
Piqua  v.  Geist,  118,  317,  756 
Piqua  v.  Zimmerlin,  48,  314 
Pitton  v.  Cincinnati,  210 
Piatt   V.   Toledo,   114 
Poland  V.  Connolly,  66 
Pollock  v.  Toland,  12,  13,  26,  27, 

34,  40,  516 
Portsmouth  V.  Milstead,  326 
Potter  v.   Bunnell,  685 
Potter  v.  Norwood,  206 
Powers  v.  Railway,  93 
Powers  v.  Wood  Co.,  26,  35 
Prescott  v.  State,  353,  355 
Pretzinger  v.  Sunderland,  204 
Price  v.  Farley,  392 
Price  v.  Toledo,  187,  203 
Printing  Co.  v.  State,  318 
Property  Owner  v.  Akron,  208 


TABLE    OF    CASES. 


883 


(References    are    to    pages.) 


Pruden  v.  Cincinnati,  60,  84 

Puccine  v.  Cincinnati,  120 

Pugh  Printing  Co.  v.  Deputy  State 

Supervisors,  etc.,  373 
Pugh   v.   Electric  Light   Co.,    345, 

346 
Pullen  v.  Smith,  173,  174 
Pummill  v.  Baumgartner,  505 
Pump  v.  Comm'rs,  515 
Punshon  v.  Cincinnati,  204,  228 
Purcell  V.  Riverside,  319 
Put-in-Bay  v.  Stimmel,  87 
Put-in-Bay  v.  Webb,  174 


Q. 


Queen  City  Foundry  Co.  v.  Cincin- 
nati, 203 

Queen  City  Telephone  Co.  v.  Cin- 
cinnati,   715 

Quinlan  v.  Myers,  184 


R. 


Radebaugh  v.  Plain  City,  75,  77 
Radebaugh  v.  Shelley,  528 
Rademacher  v.  Cincinnati,  194 
Railroad    v.    Campbell,    683 
Railroad  v.  Cincinnati,  685 
Railroad  V.  Cobb,  684 
R.  R.  v.  Comm'rs,  26,  32,  83,  85, 

116,  146,  515,  683,  707 
Railroad  V.   Lersch,  684 
Railroad  v.  Mowatt,  683,  684 
Railroad  v.  Railroad,  683,  708 
Railroad  v.  State,  686 
Railroad  v.  Stephenson,  839 
Railroad  v.  Van  Dorn,  685 
Railroad  v.  Williams,  684 
R.  R.  Co.  V.  Ball,  93,  212 
R.  R.  Co.  v.  Bellaire,  268 
R.  R.  Co.  v.  Belle  Centre,  82,  84, 

90 
R.  R.  Co.  v.  Belmont  Co.,  186 
R.  R.  Co.  V.  Bohm,  89,  90,  685 
R.  R.  Co.  v.  Campbell,  93 
R.  R.  Co.  v.  Cincinnati,  313 
R.  R.  Co.  v.  Collett,  93 
R.  R.  Co.  v.  Columbus,  684 
R.  R.  Co.  v.  Connelly,  181,  186 
R.  R.  Co.  v.  Dayton,  56,  82,  314 
R.  R.  Co.  v.  Defiance,  26,  57,  112, 

115,  115a,  128,  208,  682,  685. 


R.  R.  Co.  v.  Gardner,  93,  210,  212 

R.  R.  Co.  v.  Hambleton,  116,  684 

R.  R.  Co.  v.  Hamilton,  83,  684 

R.  R.  Co.  v.  Hyde  Park,  91 

R.  R.  Co.  V.  McCormick,  682 

R.  R.  Co.  V.  McLaughlin,  208 

R.  R.  Co.  v.  Morris,  177 

R.  R.  Co.  v.  O'Hara,  684 

R.  R.  Co.  v.  Perkins,  84,  94 

R.  R.  Co.  v.  Prentice,  89 

R.  R.  Co.  v.  Scahill,  543 

R.  R.  Co.  v.  Sullivan,  270,  677 

R.  R.  Co.  V.  Zinn,  93 

Railway  v.  Bowling  Green,  658 

Railway  v.  Columbus,  267 

Railway  v.  Gardner,  93,  683,  684 

Railway  V.  Howard,  839 

Railway  v.  Lawrence,  115b,  133 

Railway  v.  Maurer,  685 

Railway  V.  Railway,  93 

Railway  v.  Telegraph  Ass'n,  715. 

Ry.  Co.,  In  re,  131 

Ry.  Co.  v.  Bellaire,  265,  270 

Ry.  Co.  v.  Carthage,  115c,  129,  375, 

683 
Ry.  Co.  v.  Cincinnati,  100,  124,  180 
Ry.  Co.  v.  Cleveland,  128 
Ry.  Co.  v.  Cummins,  131 
Ry.  Co.  v.  Cumminsville,  113,  143, 

210,  822 
Ry.  Co.  v.  Day,  151 
Ry.  Co.  v.  Elyria,  44,  114,  115,  115a, 

116,  131,  134,  342,  682 
Ry.  Co.  v.  Garrard,  94 
Ry.  Co.  v.  Greenville,  84,  87,  91 
Ry.  Co.  v.  Herrick,  312,  682 
Ry.  Co.  v.  Knauss,  93,  94,  96 
Ry.  Co.  v.  Koblentz,  101 
Ry.  Co.  v.  Longworth,  93,  94 
Ry.  Co.  v.  Mammet  Adm'r,  115 
Ry.  Co.  v.  Martin,  696,  697a 
Ry.  Co.  V.  Ry.  Co.,  324 
Ry.  Co.  V.  Schneider,  679 
Ry.  Co.  V.  Trainer,  313,  682 
Ry.  Co.  v.  Troy,  84,  92 
Ry.  Co.  v.  Williams,  93 
Raitz  v.  Green,  471 
Ramsey  v.  Columbus,  54,  461,  645 
Rapp  V.  Cincinnati,  152 
Ratterman  v.  Niehaus,  800 
Ratterman  v.  State,  340,  545,  803 
Raudebaugh  v.  Shelley,  528 
Ravenna  v.  Pennsylvania  Ry.  Co., 

44,  45,  351,  674,  683 
Rawson  &  Co.  v.  Schott,  793,  800 
Raymond   v.    Cleveland,   180,    181, 

182,   477 


884 


TABLE   OF   CASES. 


(References    are    to    pages.) 


Raynolds  v.  Cleveland,  113,  143a, 

147,  148,  151,  343,  346,  372 
Rea  v.  Smith,  471 
Reckner  v.  Warner,  207 
Reed  v.  Board  of  Education,  505 
Reed  v.  Cincinnati,  183,  191 
Reed  v.  Maxfield,  26 
Reed  V.  Toledo,  157 
Reeves  v.  Griffin,  511 
Reeves   v.   Treas.   Wood   Co.>   158, 

180,  181 
Reiter  v.  State,  449,  515,  536 
Reuben  v.  Swigart,  114,  115c 
Reynolds  v.  Clearwater,  263 
Reynolds  v.   Green,   265 
Reynolds  v.  Newton,  129,  130,  744, 

745 
Reynolds  v.  Schweinefus,  315 
Reynolds  v.  Stark  Co.,  103,  104 
Rhoades  v.  Toledo,  174,  262 
Rhodes  v.  Cleveland,  208,  246 
Ricard  Boiler  &  Engine  Co.  v.  To- 
ledo, 103  ' 
Richards   v.   Cincinnati,   130,   186, 

188,   189 
Richland  Co.  v.  Citizens'  Electric 

Ry.  Co.,  145 
Richter  v.   Norwood,   224 
Ridenour   v.    Saffin,    26,    158,    180, 

195,  268 
Ridenour  v.  State,  513 
Ritter  v.  Falkinburg,  30 
Roberts  v.  Easton,  152,  153,  315 
Roberts  &  Co.  v.  Cincinnati,  52 
Roberts   &  Co.  V.   Taft,   285,   301, 

697a 
Robinson  v.  Cleveland  St.  Ry.  Co., 

702 
Robinson  v.  Greenville,  117,  389 
Rogers  v.   Pugh,   504 
Rogers  v.  Railway  Co.,  148a,  342, 

344,  346 
Rolling  v.  Lorain,  366 
Ronnebaum  v.  Railway,  152 
Rose  v.  King,  742,  743 
Rose  V.  Toledo,  59,  329 
Rosebaugh  v.  Saffin,  63 
Ross  v.   Board   of  Education,   373 
Ross  v.   Cincinnati,   130,   210,   211 
Ross  v.  Columbus,  148,  345,  348 
Ross,  et  ah,  v.  Cincinnati,  130,  211 
Ross  v.  Railway,  684 
Rost  v.  Glenville,  40,  809 
R.  S.  C.  &  H.  St.  Ry.  Co.  v.  C.  H. 

&  I.  R.  R.  Co.,  699 
Rudi  v.  Lang,  839,  840 
Ruffner  v.  Hamilton,  528 
Russell  v.  Toledo,  117a 


Rutter  v.  Henry,  839,  840,  841 
Ryan  v.  Cincinnati,  174,  208,  210, 

218,  223 
Ryan,  ex  parte,  49,  74,  76,  77 
Ryan   v.   Hoffman,   101,   102,    103, 

173,  174,  548 
Ryan  v.  Jacob,  76 
Ryan  v.  Orbison,  290,  320 


3. 


Sadler  v.  Porter,  778 

St.  Bernard  v.  Kemper,  227 

St.   Mary's   v.   Railroad,   674,   676, 

677 
St.  Mary's  v.  Rowe,  505 
Salem  v.  Mulford,  204,  263 
Sandrock  v.  Columbus,  191 
Sanfleet  v.   Toledo,   146,   148,    151, 

152,  153,  325 
Sargent  v.  O.  &  M.  R.  R.,  683 
Satchell  v.  Doram,  130,  744,  747 
Savings  Co.  v.  Cincinnati,  200,  207 
Scarborough  v.  Gibson,  801 
Schaefler  v.  Sandusky,  117a 
Schaible  v.  Ry.,  93 
Schindler  v.  Lewis,  800 
Schlagel  v.  State,  806 
Schlemmer  v.  Furniture  Co.,  128, 

133 
Schmidt  v.  Cincinnati,  191 
Schmidt   v.   Elmwood   Place,   199, 

238,  240,  268 
Schneider  v.  Cincinnati,  117a,  120 
Schroder  v.  Overman,  202,  214,  265, 

319 
Schwab  v.  Traction  Co.,  152 
Schwegman   v.    St.    Bernard,    469, 

470 
Schweinfurth  v.  R.  R.  Co.,  121 
Scio  v.  Hollis,  544 
Scott  V.  Athens,  738 
Scott  v.  Hamilton,  214,  372a 
Scott  v.  Trustees,  537 
Scott's  Sons  v.  Raine,  794,  799,  800 
Scovill  v.  Cleveland,  180,  181,  186, 

199,  310 
Scovill  v.  Geddings,  329 
Scully  v.  Cincinnati,  181,  190,  195 
Seasongood  v.  Cincinnati,  210. 
Seegar  v.  Harrison,  747 
Seese  v.  Maumee,  116 
Sessions  v.  Crunkilton,  82,  85,  158, 

180,  181 
Sharp  v.   Cincinnati,   118 
Shattuck  v.  Cincinnati,  191 


TABLE    OF    CASES. 


885 


(References    are    to    pages.) 


Shaw  v.  Jones,  319,  328,  343,  344, 

346,  502 
Shehan  v.  Cincinnati,  182 
Shelby  v.  Clagett,  120,  238 
Shelby  Co.  v.  Frego,  479,  528 
Shepard  v.  Baron,  184,  185,  224 
Shepherd  v.  B.  &  O.  R.  R.,  683 
Sherard  v.  Lindsay,  793 
Shiner  v.  Norwood,  187,  192 
Shoemaker  v.  Cincinnati,  190,  348 
Short  v.  Cincinnati,  809i 
Shugars  v.  Williams,  10,  13,  27 
Shunk  v.  First  Nat.  BanK,  529 
Sigler  v.  Cleveland,  47 
Sims  v.  St.  Railroad  Co.,  145,  148a, 

314 
Simmons  v.  Toledo,  143,  146,  147, 

150,  151,  152,  153,  374 
Sipe  v.  Murphy,  50,  74,  75 
Slatmyer  v.  Springbom,  485 
Slaughter  v.  Columbus,  544,  571 
Slavin  v.   Greene,  183 
Sloan  v.  Hubbard,  840 
Sloane  v.  People's  Elec.  Ry.,  146, 

148a,  151,  152,  344,  346,  348 
Smedes  v.  Railroad  Co.,  115b 
Smith  v.  Altick,  200 
Smith  v.  Cincinnati,  181,  208 
Smith  V.  Columbus,  470 
Smith  v.  Columbus,  etc.,  Railway, 

150,  321 
Smith  v.  Commissioners,  470 
Smith  V.  Evens,  61,  174 
Smith  v.  Lynch,  328,  329,  418,  419, 

503 
Smith   v.    Major,    77 
Smith  v.  Railroad  Co.,  319,  374 
Smith  v.   Toledo,   186,  195 
Snelbaker  v.  Jacobs,  329 
Snyder  v.  Depot  Co.,  50b 
Sommers  v.   Cincinnati,   145,   147, 

148a,  152,  153,  314,  346 
South  Charleston  Election,  In  re, 

805,    806 
Spangler    v.    Cleveland,    183,    186, 

190,  259,  263 
Sprankle  v.  Cleveland,  58,  175 
Springer  v.  Avondale,  192 
Springfield  v.  Spence,  245 
Springfield  v.  Walker,  43 
Springfield  Tp.  v.  Demott,  610 
Springfield  Tp.  Co.  v.  Springfield, 

126 
Springmeier  v.  State,  ex  rel,  245 
Spurgeon  v.  McElwain,  45 
Squier  v.  Cincinnati,  182,  228 
Squires,  application  of,  64 
Stall  V.  Macalester,  479 


Stamberger  v.  Cleveland,  117 

Stanley  v.  Cincinnati,  204,  206 

Stannard  v.  Case,  479 

State  v.  Adams,  503 

State  V.  Alden,  506 

State  V.  Ailing,  329 

State  V.  Anderson,  328,  502 

State  v.   Archibald,   442 

State  V.  Baker,  460,  461,  467 

State  v.  Bair,  173,  509a 

State  V.  Barbee,  310,  535 

State  v.  Barr,  315,  531 

State  v.  Baughman,  384 

State  V.  Bingham,  329,  503 

State  v.  Blake,  506 

State  v.  Board  of  Education,  372a, 

381 
State  v.  Borham,  581 
State  v.  Boring,  533 
State  V.  Bowman,  505 
State  v.  Brewster,  2 
State  V.  Brown,  169,  513 
State  v.  Buckley,  515 
State  V.   Buttles,  537 
State  v.  Cappelar,  789 
State    V.    Chandler,   428 
State  v.  Chapman,  405 
State  v.  Choate,  310 
State  v.  Cincinnati,  31,  305,  478, 

504,    635 
State  v.  Cincinnati  Fertilizer  Co., 

827 
State  v.  Clarke,  791 
State  v.  Com'rs,  113,  277,  373,  374, 

381,    479,    641,    829 
State  v.  Constantine,    8 
State  v.  Conway,  506 
State  v.  Cook,  480 
State  v.  Corey,  505,  514 
State  V.  Cottle,  505 
State  v.  Covington,  320,  384 
State  v.   Craig,   26,  112,   158,   1C5, 

528,  529 
State  V.  Crooks,  505,  507 
State  v.  Davis,  26,  479,  481,  635 
State  v.  Dayton  Traction  Co.,  142, 

143,  148 
State  v.  Dombaugh,  515 
State  v.  East  Cleveland  R.  R.  Co., 

148a,  150,  151,  153,  154 
State  v.  Electric  Street  Ry.,  145, 

153,  707,  711 
State  v.  Eshelby,  503,  513 
State  v.  Findlay,  504,  505,  507 
State  v.   Fire  Commissioners,   54, 

405,  510 
State  v.  Foraker,  845 
State  v.   Frame,   515 


886 


TABLE    OF    CASES. 


(References    are    to    pages.) 


State  V.  Funk,  177 
State  v.  G.  A.  Society,  1 
State  v.  Gardner,  329,  503,  810 
State  v.  Gibson,  227,  278 
State  v.  Graydon,  245 
State  V.  Griffin,  460,  462 
State  v.  Griffiths,  505 
State  v.   Hamilton,  570,  668 
State  v.  Hance,  449 
State  v.  Harper,  506 
State  v.   Heibel,   804 
bcate  v.  Heinmiller,  391,  472. 
State  v.  Hinkle,  346,  347 
State  v.  Hobart,  46 
State  v.  Hoglan,  509a,  510,  511 
State  v.  Howe,  304,  534 
State  v.  Hudson,  509a,  510 
State  V.  Humphreys,  159 
State  v.  Irvin,  101 
State  v.  Jennings,  502 
State  v.  Kelley,  529 
State  v.  Kinney,  515 
State  v.  Kinninger,  442 
State  v.  Lake  Erie  Iron  Co.,  374 
State' v.  Lewis,  451,  470,  800. 
State  v.  Lower  River  Road,  124 
State  V.  Massillon,  419 
State  v.  McClain,  511 
State  v.  McKinley,  503 
State  v.  Medary,  505 
State  V.  Meyers,  328,  502,  534 
State  v.  Miller,  308 
State  v.  Mitchell,  18,  185,  478 
State  v.  Nelson,  710 
State  v.  Newark,  310 
State  v.  Newton,  529 
State  V.  Niemes,  375 
State  V.  O'Brien,  503 
State  v.  Oglevie,  641 
State  v.  Perry  Co.,  515 
State  v.  Peters,  590 
State  v.  Philbrick,  175,  512 
State  v.  Piatt,  506 
State  v.  Powers,  486a 
State  v.  Pugh,  2,  696 
State  v.  Railroad,  685 
State  v.  R.  R.  Co.,  102 
State  v.  Ry.,  147 
State  v.  Ry.  Co.,  115c,  701 
State  v.  Raine,  26 
State  v.  Richland  Tp.,  641 
State  v.  Ridgway,  806 
State  v.  Salem  Water  Co.,  668 
State  v.   Schlatterbeck,  353 
State  v.  Squire,  311 
State  V.  Staley,  278 
State  v.  Sullivan,  311,  417,  510,  511, 
800 


State  v.  Taylor,  533 

State  v.  Telephone  Co.,  714 

State  v.  Thompson,  45 

State  v.  Toledo,  2 

State  v.  Tooker,  53,  76 

State  v.  Tool,  536 

State  v.  Townley,  534 

State  v.  Traction  Companies,  711 

State  V.  Trustees,  157 

State  V.  Ulm,  48,  314 

State  V.  Voris,  442,  569 

State  v.   Ward,  7 

State  v.  Washington  Tp.,  641 

State  v.  West,  471 

State  v.  Wilkesville,  309 

State  v.  Wilson,  533 

State  v.  Withers,  74 

State  v.  Yeatman,  373 

State  v.  Zumstein,  345 

State  ex  rel  v.  Allison,  284 

State  ex  rel  v.  Anderson,  308,  328 

State  ex  rel  v.  Anlin,  285,  374,  845 

State  ex  rel  Atty.  Gen.  v.  Beacoms, 

2 
State  ex  rel  Atty.  Gen.  v.  Coving- 
ton, 2 
State  ex  rel  v.  Auditor,  479 
State  ex  rel  v.  Bailey,  449 
State  ex  rel  v.  Baker,  2,  32,  349 
State  ex  rel  v.  Barnes,  373a 
State  ex  rel  v.  Barrett,  391,  408, 

417,  510 
State  ex  rel  v.  Bell,  145,  151 
State  ex  rel  v.  Berry,  308 
State  ex  rel  v.  Betts,  373 
State  ex  rel  v.  Bloch,  442 
State  ex  rel  v.  Board,  245,  372a 
Ltate  ex  rel  v.  Board  of  Ed.,  277, 

284,  326,  327,  372a 
State  ex  rel  v.  Bowers,  309,  339, 

342,   343 
State  ex  rel  v.  Boyce,  548 
State  ex  rel  v.   Boyden,  351,  382 
State  ex  rel  v.  Brewster,  32,  479, 

534 
State  ex  rel  v.  Brown,  44,  309,  310 
State  ex  rel  v.  Bryson,  391,  472, 

511 
State  ex  rel  v.  Buckley,  33 
State  ex  rel  v.  Capeller,  327a,  574 
State  ex  rel  v.  Carlisle,  113,  327 
State  ex  rel  v.  Chillicothe,  458 
State  ex  rel  v.  Cincinnati,  2,  32, 

122,  284,  373,  375 
State  ex  rel  v.  Cin.  Gas  L.  &  C. 

Co.,  316,  317,  657,  662,  664,  668 
State  ex  rel  v.  C,  M.  &  L.  Trac- 
tion Co.,  148a 


TABLE  OF  CASES. 


887 


(References    are    to    pages.) 


State   ex   rel  v.    Cleveland,    etc., 

Co.,  657 
State  ex  rel  v.  Collister,  309,  502 
State  ex  rel  v.  Columbus  Ry.  Co., 

115,  143,  143a,  153 
State  ex  rel  v.  Commissioners,  113, 

282,  284,  381,  384,  507,  536,  643, 

756,  759 
State  ex  rel  v.  Commissioners  of 

Ottawa  Co.,  742 
State  ex  rel  v.  Constable,  329,  503 
State  ex  rel  v.  Cook,  5 
State  ex  rel  v.  Coon,  328 
State  ex  rel  v.  Covington,  328 
State  ex  rel  v.  Cowles,  2 
State  ex  rel  Commissioners  v.  Cin- 
cinnati, 756 
State   ex   rel.   v.   Craig,   310,   421, 

521a,  515 
State  ex  rel.  v.  Dahl,  515 
State   ex  rel.  v.   Darby,   310,   311, 

384,   514,   515,   534,    535 
State  ex  rel  v.  Davis,  529 
State  ex  rel  v.  Depot  Co.,  696 
State  ex  rel  v.  Directors,  284,  373 
State  ex  rel  v.  East  Cleveland  Ry. 

Co.,  148a 
State  ex  rel  v.  Electric  St.  Ry.,  145 
State  ex  rel  v.  Ermston,  535,  574 
Scate  ex  rel  v.   Extension  Lower 

River  Road,  765 
State  ex  rel  v.  Fire  Commission- 
ers, 511 
State  ex  rel  v.  Franklin  Co.,  374, 

528 
State  ex  rel  v.  Fronizer,  44 
State  ex  rel  v.  Ganson,  311,  405, 

509a,  510 
State  ex  rel  v.  Gas  Co.,  313,  315, 

657.  659,  668 
State  ex  rel  v.  Gas  Light  &  Coke 

Co.,  115,  311,  314,  315 
State  ex  rel  v.  Gibson,  174 
State  ex  rel  v.  Godfrey,  791 
State  ex  rel  v.  Green,  307,  315 
State  ex  rel  v.  Hadley,  535 
State  ex  rel  v.  Hall,  250,  361,  410, 

410a,  480 
State  ex  rel  v.  Hamilton,  449,  660, 

663,  670 
State  ex  rel  v.  Hamilton  Co.,  329 
State  ex  rel  v.  Hanna,  381 
State  ex  rel  v.  Hawkins,  2,  5,  480, 

509a,  511 
State  ex  rel  v.  Henderson,  146,  315, 

325 
State  ex  rel  v.  Hermann,  372a,  652 
State  ex  rel  v.  Hipp,  74 


State  ex  rel  v.  Hoffman,  173 
State  ex  rel  v.  Holmes,  799 
State  ex  rel  v.  Holden,  44,  62,  330 
State  ex  rel  v.  Howe,  5,  480 
State  ex  rel  v.  Hubbard,  392,  395 
State  ex  rel  v.  Hudson,  2 
State  ex  rel  v.  Hyman,  391,  408, 

417 
State  ex  rel  Hussey  v.  Hyman,  408, 

417 
State  ex  rel  v.  Jennings,  328 
State  ex  rel  v.  Jones,  5,  384 
State  ex  rel  v.  Kearns,  304,  310, 

311,  514,  533 
State  ex  rel  v.  Keeler,  310 
State  ex  rel  v.  Kennon,  328,  503, 

533 
State  ex  rel  v.  Ketter,  2 
State  ex  rel  v.  Killits,  5,  480,  505, 

534 
State  ex  rel  v.  Kinney,  309,  310 
State  ex  rel  Knisely  v.  Jones,  2, 

384 
State  ex  rel  v.  Lewis,  112,  504 
State  ex  rel  v.  Liberty  Twp.,  312, 

822 
State  ex  rel  v.  Massillon,  175,419, 

421a 
State  ex  rel  v.  McCracken,  515 
State  ex  rel  v  McGonagle,  328 
State  ex  rel  v.  McGregor,  310,  515, 

534,    535 
State  ex  rel  v.  McMillan,  310 
State  ex  rel  v.  Mitchell,  15 
State  ex  rel  v.  Nash,  535 
State  ex  rel.  v.  Newark,  10,  419, 

513 
State  ex  rel  v.  Nieman,  373a 
State  ex  rel  v.  Norton,  374 
State  ex  rel  V.  O'Brien,  308,  329 
State  ex  rel  v.  Orr,  105,  310,  317 
State  ex  rel  v.  Pinney,  177 
State  ex  rel  v.  Pohling,  759 
State  ex  rel  v.  Pollner,  507 
State  ex  rel  v.  Prendergast,  423     ^ 
Si.ate  ex  rel  v.  Railroad,  683 
State  ex  rel  v.  R.  R.  Co.,  114 
State  ex  rel  v.  Railway,  122,  683 
State   ex   rel   v.   Raine,    327,   793, 

794 
State  ex  rel  v.  Rattermann,  2,  384 
State  ex  rel  v.  Robins,    539b 
State  ex  rel  v.  Roebuck,  316,  345, 

351,  372a 
State  ex  rel  v.  Roll,  311,  405 
State  ex  rel  V.  Rust,  328,  503,  606 
State  ex  rel  v.  St.  Bernard,  372a, 

373 


888 


TABLE   OF    CASES. 


(References    are    to    pages.) 


State  ex  rel  v.  Schauss,  488,  489 
State  ex  rel  v.  Schumate,  564 
State  ex  rel  v.  Shelby  Co.,  478 
State  ex  rel  v.  Simpson,  557 
State  ex  rel  v.   Slough,   310,   504, 

515,  535 
State  ex  rel  v.  Smith,  590 
State  ex  rel  v.  Speidel,  515 
State  ex  rel  v.  Spellmire,  778 
State  ex  rel  v.  Stockley,  479 
State  ex  rel  v.  Strader,  158 
State  ex  rel  v.  Stroble,  387,  410a 
State  ex  rel  v.   Sutton,   311,   405, 

510 
State  ex  rel  v.  Taylor,  346,  707 
State  ex  rel  v.  Telephone  Co.,  714, 

715 
State  ex  rel  v.  Thompson,  515 
bcate  ex  rel  v.  Thrall,  534 
State  ex  rel  v.  Toledo,  44,  62,  158, 

486a,  845 
State  ex  rel  v.  Toledo  Home  Tele- 
phone Co.,  715 
State  ex  rel  v.  Toledo  Ry.  &  Light 

Co.,  148a 
State  ex  rel  v.  Trustees,  15 
State  ex  rel  v.  Union  Terminal  R. 

R.  Co.,  696 
State  ex  rel  v.  Wagar,  3,  4 
State  ex  rel  v.  Wall,  44 
State  ex  rel  v.  Water    Co.,    670 
State  ex  rel  v.  Wichgar,  177 
State  ex  rel  v.  Wilson,  328 
State  ex  rel  Witham  v.  Nash,  507 
State  ex  rel  v.  Witt,  308 
State  ex  rel  v.  Wright,  304,  442, 

514,  534,  557 
State  ex  rel  v.  Wyman,  410a 
Steamboat  Monarch  v.  Finley,  1 
Steamboat    Northern    Indiana    v. 

Milliken,    442,    543 
Stearns  v.  Wyoming,  308 
Steese  V.  Oviatt,  183,  221,  263 
Stem  V.  Cincinnati,  160,  169 
Stephan  v.   Daniels,   76,   194,   222, 

266,  268 
Stephenson  v.  Leesburg,  130,  744, 

745 
Sterling   v.    Bowling    Green,    50a, 

50b,  314 
Steubenville  v.  Gulp,  391,  513 
Steubenville  v.  King,  26,  112,  128 
Steubenville  v.  McGill,  115,  115a, 

119 
Steuer  v.  McConnell,  314 
Stevens  V.  Allman,  533 
Stevens  v.  Shannon,  11,6,  133 
Stevens  v.  State,  515 


Stewart  v.  Ashtabula,  148 
Stewart  v.   Southard,  329 
Stewart  v.  State,  806 
Stick  v.  State,  805 
Stone  v.  Viele,  183 
Storer  v.  Cincinnati,  228 
Storey  v.  Jennings,  505 
Strang,  ex  parte,  329,  503,  575,  576 
Strauss  v.  Cincinnati,  194,  200,  212, 

262,  265 
Strauss  v.  Conneaut,  63,  63a,  324 
Strawn  v.  Commissioners,  513 
St.  Railroad  Co.  V.  Smith,  114 
St.  Ry.  v.  Cleveland,  154 
Street  Ry.   v.   Cumminsville,   113, 

115b,  143,  210,  822 
Street  Railway  v.  Dayton,  148 
Street  Ry.  Co.  v.  Murray,  679,  711 
St.  Ry.  Co.  v.  St.  Ry.  Co.,  32,  145 
Stribley  v.  Cincinnati,  87,  92 
Strong  v.  Darling,  748 
Sturges  V.  Carter,  789 
Sullivan    v.    Columbus,    112,    128, 

130,  744 
Sullivan  v.  Newark,  118 
Sullivan  v.  Pausch,  268,  315,  319 
Sullivan  V.  Urbana,  278,  281 
Swartz  v.  Wayne  Co.,  513 


Taber  v.  Bowling  Green,  208,  210 
Taft  v.  Cincinnati,  32 
Tannian  v.  Telegraph  Ass'n,  115a 
Taylor  v.  Commissioners  of  Ross 

County,  515,  696 
Taylor  V.  Day,  776 
Taylor   v.    Wapakoneta,    184,   221, 

228 
Telephone  Co.  v.  Middletown,  715 
Tenney,   et  al.,  v.   Cincinnati,   92, 

130,  211 
Tepe  v.  Norwood,  246 
Terry  v.  State,  566 
Thale  V.  Cincinnati,  39,  209,  211, 

262 
Thatcher  v.  Toledo,  195,  238,  319 
Thomas  v.  Ashland,  574 
Thomas  v.  C,  N.  O.  &  T.  P.  Ry.  Co., 

697a 
Thomas  v.  Evans,  529 
Thomas  v.  Findlay,  119,  389 
Thomas  v.  Fremont,  114 
Thomas  V.   Mt.   Vernon,   74 
Thomas  v.  Ry.  Co.,  329 
Thomas  v.  Village  of  Ashland,  574 


TABLE   OP    CASES. 


889 


(References    are    to    pages.) 


Thomas  v.  Wilton,  329 
Thompkins  v.  Norwood,  191 
Thompson  v.  Mt.  Vernon,  48,  314 
Thompson  v.  Nemeyer,  103 
Thompson,  Relator,  v.  Phillips,  327 
Thorns  v.  Greenwood,  696 
Thorne  v.  Megrue,  507 
Thornhill  v.  Cincinnati,  45,  63,  147 
Tnornton  v.  Cincinnati,  203,  228 
Tiffin  V.  McCormack,  46 
Tiffin  v.  Shawhan,  43,  104,  105,  106, 

331,  452,  543 
Tippecanoe  v.  Boercher,  77 
Tipton  V.  Tipton,  99 
Todd  V.  R.  R.  Co.,  744 
Toledo   v.   Ainsworth,   91 
Toledo  V.  Andrews,  254 
Toledo  v.  Bank,  204 
Toledo  v.  Barnes,  189,  264 
Toledo  v.  Bayer,  86,  87,  92 
Toledo  v.  Beaumont,  254 
Toledo  v.  Board  of  Education,  187, 

230 
Toledo  V.  Breyman,  212 
Toledo  v.  Brown,  204,  205 
Toledo  v.  Buechele,  55,  58,  76,  77 
Toledo  V.  Center,  120 
Toledo  v.  Cone,  68,  118,  329 
Toledo  v.  Converse,  129 
Toledo   V.   Ford,    233 
Toledo  v.  Fuller,  120,  122 
Toledo  V.  Grasser,  246,  265 
Toledo  v.  Groll,  101 
Toledo  v.  Higgins,  117a 
Toledo  v.  Hosier,  789 
Toledo  v.  Jacobson,  103,  209,  218, 

220 
Toledo  V.   Kohn,  254 
Toledo  V.  Lalond,  120 
Toledo  v.  Lewis,  117a 
Toledo  v.  Libbie,  63,  324 
Toledo  V.  Marlow,  182 
Toledo  v.  McMahon,  199,  208,  268 
Toledo  v.  Nitz,  117a,  120,  121,  122 
Toledo  v.  N.    W     Ohio    Nat.    Gas 

Co.,  344,  657,  658,  660,  666 
Toledo  v.  Piatt,  265 
Toledo  v.  Potter,  206,  255 
Toledo  v.  Preston,  213,  217 
Toledo  V.  Radbone,  120,  121,  122 
Toledo  v.  Ry.  Co.,  129,  204,  205,  206, 

245,  250,  252,  255,  267 
Toledo  v.  Scott,  211 
Toledo  V.   Sheill,  191 
Toledo  v.  Toledo  Ry.  &  Light  Co., 

147,  148a,  548 


Toledo  v.  Toledo,  159,  478 
Toledo  V.  Weber,  96 
Toledo  v.  Willinger,  122 
Toledo  Bending  Co.  v.  Ry.,  115b 
Toledo  Consolidated   St.   R.   R.   v. 

Sweeney,  685 
Toledo  Elec.  St.  Ry.  Co.  v.  T.  &  M. 

V.  Ry.,  107 
Toledo  Electric  Street  Railway  Co. 

v.   Westenhuber,   143a 
Toledo,    etc.,   Ry.    Co.    v.    Gilbert, 

143a 
Toledo,  etc.,  R.  R.  v.  Toledo,  91 
Toledo,  etc.,  Ry.  v.  Toledo  Elec.  St. 

Ry.,  147,  148a,  321,  707 
Toledo  Ry.  Co.  v.  Fostoria,  82,  100 
Toledo  Ry.  &  Light  Co.  v.  Ward, 

389 
Toledo  Ry.  &  T.  Co.  v.  Meinen,  683, 

684 
Toledo  St.  R.  R.  Co.  v.  Mammet, 

115 
Tone  v.   Columbus    183,  184,   185, 

222,   223 
Tootle  v.  Clifton,  46 
Tp.  Co.  v.  Mt.  Healthy,  765 
Traction  Co.  v.  Marriott,  143a 
Traction  Co.  V.  Traction  Co.,  142, 

143,  707 
Transit  Company  v.  Traction  Co., 

143 
Treasurer  v.  Bank,  515 
Tremainsville    PI.    &    Tp.    Co.    v. 

Toledo,  125 
Trimble  v.  Bucyrus,  45 
Trowbridge  v.  Hudson,  174,  242 
Troy  v.  Brady,  117,  122 
Truesdell  v.  Combs,  583,  586 
Truman  v.  Walton,  582,  583,  584, 

586 
Trumbull  Co.  v.  Pennsylvania,  115c 
Trustees  v.  Corzilius,  462 
Trustees  v.  O'Meara,  90 
Trustees  of  Southern  Ry.  v.  Haas, 

103 
Tuall  v.  Lucas  Co.,  513 
Tucker  v.  Newark,  151,  344,  374 
Turner  v.  Toledo,  119,  423,  428 
Turnpike  Co.  v.  Cincinnati,  26,  93, 

123,  765 
Turnpike  Co.  v.  Comm'rs,  211 
Turnpike  Co.  v.  Kelley,  26,  126 
Turpin  v.  Hagerty,  10,  11,  12 
Tyler   v.   Columbus,   86,   173,   174, 

194 
Tyler  v.  Winslow,  479 


890 


TABLE   OF   CASES. 


(References    are    to    pages.) 


u. 


U.  M.  &  C.  Ry.  Co.  v.  Columbus, 

146. 
Unrig  v.  Reading,  470 
Ulm  v.  Cincinnati,   181,  183,  212, 

265 
Ulrich  v.   Toledo   Consol.   St.   Ry. 

Co.,   50b,   313 
Union  Co.  v.  Greene,  182 
United  States  v.  Kent,  157,  159 
U.  S.  Trust  Co.  v.  Mineral  Ridge, 

281 
University  v.   Cincinnati,   490a 
Upington  v.  Oviatt,  105,  181,  183, 

188,  195,  196,  204,  221,  265,  267, 

268,    269,    270,    319,    321,    373a, 
Urmey  v.  Wooden,  537 


V. 


Vacation  Hotel   Alley,  In   re,   134 
Vadakin  v.  Crilly,  285,  346. 
Valley    Ry.    Co.    v.    Pouchot,    827 
Van  Buskirk  v.  Newark,  544 
Vandyke  v.  Cincinnati,  46,  117,  312 
Van  Hagan,  ex  parte,  529 
Van  Wert  v.  Brown,  804 
Veigel  v.  Lukenheimer,  46,  312 
Village  of  Bradner  v.  Grundetisch, 

544 
Village  of  Pleasant  Hill  v.  Com- 
missioners, 770 
Village  v.  Kallagher,  117 
Volk  v.  Board  of  Education,  775, 

776 
Volk  v.  Westerville,  543,  804 


W. 

Waddick  v.  Merrell,  486a,  845 
Wagoner  v.   Loomis,   800 
Walcutt  v.  Columbus,  43,  325,  548 
Waldschmidt  v.  Bowland,  185 
Walke  v.  Bank,  534 
Walker  v.  Cincinnati,  157,  328,  533, 

696 
Walker,  ex  parte,  361,  364 
Walsh  v.  Barron,  180,  202 
Walsh  v.  Columbus,  68 
Walsh  v.  Sims,  185,  202,  203,  232a, 

266,  269 
Walsh  v.  Sisler,  159 
Walter  v.  Bowling  Green,  46,  51 
Walton  v.  Toledo,  55,  77,  423 


Walworth  v.  Collinwood,  745,  748 
Wamelink  v.  Cleveland,  222,  227 
Ward  v.  Barrows,  315 
Ward  v.  M4  &  N.  Tp.  &  Bridge  Co., 

82 
Ward  v.  State,  581 
Ward  v.  Ward,  260 
Warder  v.  Springfield,  460 
Warwick  v.    State,   328,   502,   503, 

531,  533,  534 
Wasem  v.  Cincinnati,  105,  318,  321, 

374 
Washington  v.   Kallagher,  48 
Wasteney  v.  Schott,  265 
Watson  v.  Erie  R.  R.,  313,  682 
Watterson  v.  Bradley,  263 
Weaver   v.    Mt.    Vernon,    48,    314, 

318,  319 
Weaver  v.  State,  806 
Webb  v.  Ohio  Gas  Fuel  Co.,  115a, 

345 
Webber  v.  Tolodo,  84,  101,  102,  128, 

129 
Weber  v.  Bishop,  511 
Weber  v.  Electric  Ry.  Co.,  45b,  143 
Wehage  v.  Cincinnati,  191 
Weir  v.  Day,  344 
Welker   v.    Potter,    194,    196,    2G8, 

373a 
Wellston  v.  Morgan,  44,  104a,  312, 

351,  372,  633,  659 
Wells  v.  State,  583,  806,  809 
Wellsville    v.    O'Connor,    63a,    64, 

314,  320 
Wenzel  v.  St.  Ry.  Co.,  113. 
Werner  v.  Cincinnati,  118,  121 
Westerhaven  v.  Clive,  504 
Westerhaven    v.    Hoytsville,    236, 

240 
Western  College  v.  Cleveland,  45, 

54,  389 
Weston  v.  Commissioners,  181 
Weston  v.   Hamilton   County,   189 
Westwood  v.  Dater,  262 
Wewell  v.  Cincinnati,  205,  250,  255, 

267 
Wheeler  v.  Cincinnati,  54,  245,  359, 

389 
Wheeler  v.  Gavin,  331,  586 
Wheeler  v.  Zanesville,  54 
W.  &  L.  E.  R.  R.  v.  McLaughlin, 

683 
Wheeling  Bridge,  etc.,  Co.  v.  Gil- 
more,  374 
Whipple  v.   Toledo,   227,   228,   264 
Whitbeck  v.  Minch,  266 
Whitcomb  v.  Springfield,  45,  46,  47 
White  v.  Cincinnati,  210 


TABLE   OF   CASES. 


890a 


(References    are    to    pages.) 


White  v.  Kent,  50,  114,  471 
White  v.  State,  529 
Whitman  v.  State,  592 
Wightman  v.  State,  49,  63a 
Wilder  v.  Cincinnati,  60,  195,  221, 

267,  268 
Wilhelm  v.  Defiance,  117,  121 
Willard  v.  Close,  184 
Williams  v.  Presbyterian  Society, 

116,  130,  131,  746 
Williams  v.  State,  571 
Willyard  v.  Hamilton,  82,  85 
Wilson  v.  Cincinnati,  175,  184,  189, 

203,  205,  214,  247,  254,  255,  265 
Wing  v.  Cleveland,  372,  373,  374 
Winslow  v.  Cincinnati,  116,  124a, 

128,  129,  744 
A.inton  V.  Cornish,  827 
Wisby  v.  Bonte,  128,  744 
Wise  v.  Kromberg,  800 
Woehler  v.  Toledo,  5,  327,  480 
Wolfe  v.  Avondale,  191 
Wolf  v.  State,  471 
Wood  v.  Pleasant  Ridge,  174,  183, 

195,  345,  346 
Wood  Co.  v.  Pargillis,  328,  373 
Woods  v.  State,  571 
VTork  v.  Massie,  479,  528 
Wright  v.  Kennedy  Heights,  466 
Wright  v.  Munger,  529 
Wright  v.  Oberlin,  11,  116,  129 
Wright  v.  Thomas,  184,  185 
Wyscaver  v.  Atkinson,  696 


Yaple  v.  Commissioners,  344,  385, 

548,  549 
Yaryan  v.  Toledo,  372a,  373,  373a 
Yeazell  v.  State,  52 
Yost  V.  Ry.  Co.,  185,  203,  266 
Youmans  v.  Board  of  Education, 

344 
Young  v.  Mahoning  Co.,  105 
Younglove  v.  Hackman,  186,  259 
Youngstown  v.  Bonnell,  262 
Youngstown  v.  Moore,  208,  209 
Youngstown  v.  Railroad,  682,  685, 

724 
Youngstown  Township  v.  Youngs- 
town, 366 


Z. 


Zanesville  v.  Auditor,  6,  480 
Zanesville  v.  Crossland,  626,  630 
Zanesville   v.    Fannan,    115,    115a, 

117,  119 
Zanesville  v.  Gas  Light  Co.,  657 
Zanesville    v.    Telegraph    &    Tele- 
phone Co.,  114,  115a,  715 
Zeigler  v.  Ashley,  122 
Zumstein  v;  Coal  &  Mining  Co.,  62, 

789 
Zumstein   v.   Mullen,   1,   303,   350, 
384 


INDEX. 


Abatement  ol  nuisance   by  municipality,   p.   46 

Accounting,  see  Officers. 

Acquisition  of  property  by  municipality,  p.  43,  62 
Scope  of  power,  p.  46,  n. 

Actions.     See  Limitation  of  Actions  and  Solicitor. 

Against  municipality,  none  on  quantum  meruit,  p.  44.  n.  4 
By  municipality,  how  brought,  p.  43,  n.  4 

Acts    authorizing   public    improvements   where    work    is    in    progress    not 
affected  by  new  code,  p.  481 
See  Statutes. 

Additional     bonds    may   be    issued    for    certain    improvements    heretofore 
authorized,  p.  485 

Adjacent   and   contiguous  territory:  what  is,  purposes  of  annexation, 
p.  26,  n.  1 
What  is,  with  respect  to  annexation  of  territory  on  application  of  a 
municipal  corporation,  p.  31,  n.  3 

Adulteration  of  food  cases  — 
Jurisdiction  over,  p.  588 
Proceedings  in,  p.  588 

Advancement  of  village  to  city,  P-  4 

Adverse  possession,  against  municipality,  p.  116,  n.  772d 

Advertisement,  of  ordinances,  resolutions,  notices,  etc.,  pp.  317,  320 

Rates  for  legal  advertising,  p.  828 

What    constitutes    square,    p.    829 

What  is  sufficient  publication,  p.  829 

What  notice  to  be  published  in  two  newspapers,  p.  828 

Advertising  distributors;  license  of,  p.  78 

Ale,  beer  and  porter  houses,  see  Intoxicating  Liquors. 

Alleys;    see  Streets. 

Animals,  domestic;  power  of  municipality  to  regulate  auction  of.  p.  49 
Power  of  municipality  to  regulate  running  at  large  of,  p.  51 
See  Pounds. 

891 


892  index. 

Annexation  of  one  mnnicipality  to  another,  p.  35 

Agreement  as  to  grades,  p.  39,  n.  1 

Certificate  of  result  of  election,  p.  36 

Commissioners  appointed  by  council,  p.  36 

Detachment  of  part  of  village  and  annexation  of  such  part  to  city, 

p.  39 
Government  of  corporation  thereafter,   p.   38 
Ordinance  approving  report  of  commissioners,  p.  37 
Ordinance    for,    p.    35 
Power  of  municipality  thereafter,  p.  38 
Pre-existing  rights  and  liabilities  of  corporation,  p.  38 
Proceedings  of  council  after  favorable  vote  at  election,  p.  36 
Report  of  commissioners,  p.  37 
Resolution  appointing  commissioners,  p.  36 
Submission  of  question  to  vote,  p.  35 
Taxes  on  annexed  municipality  alone,  p.  39,  n.  1 
Territory  annexed  pending  merger  of  corporations,  p.  39,  n.  1 
Transcript  of  proceedings,  p.  38 

Annexation  of  territory  to  municipalities,  p.  25 

Constitutionality  of,  as  affecting  liability  of  lands  annexed  for  prior 

debts  of  municipality,  p.  26,  n.  2 
Effect  of,  p.  26,  n.  3 
On  application  of  inhabitants,  p.  25 

amendment  of  petition,  p.  27,  n.  2 

duties  of  clerk  and  council,  p.  28 

duties  of  county  commissioners  with  respect  to,  p.  27 

effect  of,  p.  30 

effect  of  rejecting  application,  p.  29 

injunction  against,  p.  30 

notice  of  petition  to  be  posted,  p.  27,  n.  2 

ordinance  accepting  or  rejecting  application,  p.  29 

petition  for,  p.  25 

proceedings  when  application  is  allowed,  p.  29 

proceedings  where   corporation   or  territory   annexed    is   situated 
in  two  counties,  p.  31 

rights  of  inhabitants  when  allowed,  p.  30 

what  is  adjacent  or  contiguous,  p.  26,  n.  1 

when  complete,  p.  26,  n.  3 
On  application  of  municipal  corporation,  p.  31 

consent  of  inhabitants  not  necessary,  p.  35,  n.  1 

constitutionality  of  statute,  p.   31,  n.  4 

effect  of,  p.  26,  n.  3 

how  desire  of  inhabitants  is  expressed,  p.  31,  n.  2 

irregularity  in  proceedings  not  fatal,  p.  35 

ordinance  for,  p.  33 

petition  to  county  commissioners,  p.  33 

proceedings  before  commissioners,  p.  34 

proceedings,    when    corporation    or    territory    is    situated    in    two 
counties,  p.  34 

rights  of  inhabitants  within  territory  annexed,  p.  35 

taxes  on  territory  annexed,  p.  35,  n.  1 

what  is  contiguous  or  adjacent  territory,  p.  31,  n.  3 

what  territory  may  be  annexed,  p.  31,  n.  4 

Appointments;    see  Officers  and  under  various  boards  and  officers. 
Appropriation  of  property,    p.  80 

Amount  of  property  taken,  p.  82,  n. 

Appeal,    p.    100 

Application  to  court,  p.  88 

Appointment  of  guardian  for  infant,  p.  95 

Assessment  to  pay  compensation,  p.  83,  n. 


index.  893 

Appropriation  of  property — Continued. 

Attorney's  fee  allowed  owner  on  failure  of  municipality  to  take,  p.  101 
Auditor's  certificate  that  money  is  in  the  treasury,   not  required,  p. 

174,  n. 
Authority  to  dismiss  proceedings,  p.  102,  n. 

Bond  for  payment  of  compensation  may  be  given  by  any  person,  p.  99 
Character  of  taking  after  six  months,  p.  103,  n. 
Collateral  attack,  p.  83,  n. 
Compensation  for  what  made,  p.  92,  n. 
Conclusiveness  of  award,  p.  96,  n.  3 
Costs  how  paid,  p.  98 
Damages  caused  by  improvement,  p.  207 
Determination   of  boundary   lines   in   condemnation   proceedings   final, 

p.   89,  n.  2 
Discretion  of  municipality  as  to  quantity  needed,  p.  84,  n.  9 
Dismissal   of    proceedings,    p.    102,   n. 
Distribution  of  money  paid  into  court,  p.  97 
Error  proceedings,  p.   100 

right  of  corporation  to  possession  not  affected  by,   p.   100 
Estoppel  to  claim  compensation,  p.  83,  n. 

to  question  validity  of  proceedings,  p.  83,  n. 
Evidence,  p.  93,  n. 
Failure  to  take  within  six  months,  p.   101 

acceptance  of  compensation  by  owner  after  six  months,  p.  102,  n. 

no  bar  to  new  proceedings,  p.  102,  n. 
For  street  improvements,  p.  86.  n.  2 
Jury  fees  not  taxable  as  costs,  p.  98,  n.  2 
Land  already  devoted   to  public  use,  p.  82,   n. 

Legal  proceedings  and  assessment  of  compensation  necessary,  p.  82,  n. 
Lessee's  rights,  p.  97,  n.  2 
Limitation  on,  for  public  cemeteries,  p.  85 
Measure  of  compensation,  p.  92,  n. 
Money   in  treasury,   p.    174,   n. 
Mortgagee's  rights,  p.  90,  n.  3 
Municipal  property  for  railway  purposes,  p.  62  n. 
Notice  of  application,  p.  90 
Notice  of  resolution,  r».  85 

sufficiency  of,  p.  87,  n. 
Offer  by  corporation  to  confess  judgment,  p.  98 

effect  of,  p.  99 
Of   private   sewer,   p.    85,    n. 
Order  as  to  payment  of  award,  p.  97 
Order  of  procedure  in,  p.  87 
Ordinance  for,  p.  85 

effect  of,  p.  87,  n. 
Outside  municipality,  p.  85 
Owner's  remedies  on  failure  of  municipality  to  take,  p.  101 

n.  3 
Owner's   rights  when  property  taken  without   appropriation  proceed- 
ings, p.  83,  n. 
Possession,  order  for,  p.  97 

when  given,  p.  95 
Power  strictly  construed,  p.  82,  n.  2 
Power  to  acquire  property  by,  p.  43 
Preliminary  hearing,  p.  91,  n. 
Proceedings  under  invalid  law,  p.  102,  n. 
Proceedings  where  ownership  is  in  doubt,  p.  95 
Publication  of  notice  of  application,  p.  90,  n.  4 
Purposes  authorized,  p.  80,  82,  n. 

Railroad  tracks,  right  of  way  over  for  street  purposes,  p.  80,  84,  n.  4 
Railway  company's  lands  appropriated  for  public  offices,  etc.,  p.  84,  n.  6 


894 


INDEX. 


Appropriation  of  property — Continued. 

Refusal  by  corporation  within  six  months  to  take  property,  p.  102,  n. 

Resolution  declaring  intent,  p.  85 

Right  to  open  and  close  case,  p.  95.  96,  n.  4 

Second  appropriation,  p.    97,  102,  n. 

Section  applicable  to  cases  for  damages  for  change  of  grade,  p.  103,  n. 

Separate  trials,  p.  92,  n. 

Service  of  notice  of  application,  p.  90,  90,  n.  2 

Stay  of  execution,  p.  100 

Structure  on  land  appropriated,  p.  95 

Sufficiency  of  description  in  application  to  court,  p.  89,  n.  3 

Trial  on  application  for,  p.  91 

Verdict,  p.  94,  n.,  95 

in  whole  or  part,  p.  96 
View  of  premises,  p.  95,  96,  n.  2 
What  use  requires  compensation,  p.  83,  n. 
When  right  to  possession  accrues,  p.  83,  n. 
What  compensation  includes,  p.  92,  n. 
When  compensation  payable,  p.  101,  n. 
Who  entitled  to  compensation,  p.  83,  n. 
Appropriations;  p.  43 

Semi-annual,  order  of  procedure  in;   see  Taxation. 

Aqueducts;  see  Streets. 

Appropriation  of  land  for,  p.  81 

Arrests,  what  officers  may  make  without  warrant,  p.  554 
Art  gallery,  tax  authorized  in  aid  of,  p.  492 

Assessors;  assistants  in  certain  cities,  p.  540 
Election  of,  p.  540 
In  Cincinnati,  p.  541 
In  Cleveland,   p.    540 
In  Portsmouth,  p.  541 
In  Springfield,  p.  541 

Assessments,  p.  179 

Abutting  property,  what  is,  p.  186,  n.  3 

Action  to  collect  by  county  treasurer,  p.  265,  n.  2 

Added  territory,  p.  271 

Adjacent  and  contiguous  property,  what  is,  p.  187,  n. 

Amount  properly  chargeable,  p.  268,  n.  3 

Apportionment  between  life  tenant  and  owner  of  fee,   p.   260 

Apportionment  in  partition  case,  p.  260,  n.  1 

Assessment  and  penalty  recoverable  by  suit,  p.   264 

Auditor's  certificate  not  necessary  for  street   improvement   contracts, 

p.  174,  n. 
Bonds  for  city's  portion  of,  p.  202 

in  anticipation  of  collection,  p.  274 
By  general  taxation,  p.  188,  n.  4 
Change  of  grade,  effect  of  on  assessments,  p.  206,  n.  7 

damages  for,  see  Damages  to  Abutting  Property. 
Change  of  law  pending  proceedings,  p.  182,  n. 
Cleaning  streets,  assessments  for,  p.  231 
Collection  of,  when  collected  by  municipal  treasurer,  p.  258 

how  collected,  p.  258,  264,  270 

installments,  p.  195,  n. 

in  advance,  p.  271 
Condition  in  city's  title,  p.  189,  n. 
Conditions  precedent  to,  p.  183,  n. 
Construction  of  laws  regarding,  p.  182,  n. 
Contesting,  p.  183,  n. 

Costs  in  case  of  error  or  defect  in  proceedings,  p.  267 
Costs  in  suit  to  reduce,  p.  268,  n.  4 


INDEX.  895 

Assessments. — Continued. 

Costs  of  appropriation  cannot  be  assessed,  p.  262,  n. 

Contiguous  and  adjacent  property,  what  is,  p.  187,  n. 

Corner  lots,  p.  190,  n.  9 

Damage  to  abutting  property  cannot  be  assessed,  p.  262,  n.  1 ;  230   n.  3 

Defects  in  proceedings  cured,  p.  267 

Defects  not  cured,  p.  268,  n.  2 

Enforcement  of  lien,  p.  266 

Estoppel,  extent  of,  p.  185,  n. 

to  contest,  p.  183,  n. 

to  deny  benefits,  p.  203,  n.  2 

to  deny  excess  of  assessment,  p.  224,  n.,  228  n. 

to  deny  municipality's  title,  p.  189,  n. 

under  unconstitutional  statutes,  p.  185  n. 

what  persons  estopped,  p.  185,  n. 
Excess  or  deficiency  in,  p.  271 
Exemption  from,  p.  187,  n. 

Expense  of  changing  established  grades,  p.  230,  773 
Foot  frontage,  p.  190,  n.  9 
Injunction  against,  p.  183,  n. 
In  proportion  to  benefits,  p.  190,  n.  8 

benefits  determined,  p.  202,  n.  2 

concurrence  of  two-thirds  of  council  necessary  in  appointing  equal- 
izing board,  p.  262 

equalization  of  assessments,  p.  235 

hearing    of    assessments    by    benefits,    appointing    of    estimating 
board,  p.  233 

notice  of  assessment,  how  published,  p.  260 

objections  to  assessment  to  be  filed,  p.  261 

order  of  procedure,  p.  234 
Installments  of  assessments,  p.  194 
Intersections,  p.  201 
Interest  on  bonds,  p.  204,  n.  3 
Judgment  for,  p.  265,  n.  2 
Jurisdiction  of  courts  in  cases  of,  p.  270 
Lands  not  subdivided,  p.  192 
Lien  of,  p.  263,  264,  n.  3 

as  to  non-resident  owners,  p.  267 

duration  of,  p.  270 
Limitation  of  assessments,  p.  201 

for  separate  improvements,  p.  203,  n.  3 

reassessments,  p.  202 

sewer  assessments,  p.  201 

sidewalk  and  sewer  assessments,  p.  203,  n.  3 

sidewalk  assessments,  p.  240,  n.  3 

to  special  benefits,  p.  202,  n.  2 
Limitation  on  suit,  p.  265,  n.  2 
Local  drainage,  p.  201,  204,  n.  6 

conclusiveness  of  council's  determination  as  to  drainage,  p.  206,  n. 

by  natural  drainage,  p.  205,  n. 

by  private  sewer,  p.  205,  n. 

surface  drainage,  p.  206,  n. 

opinion  of  council  as  to  sufficiency  of,  p.  204,  n.  5 

unimproved  property,  p.  206,  n. 
Lots  and  lands,  how  described,-  p.  213 
Methods  of,  p.  180 

Miscellaneous  provisions,  p.  258,  773 
Municipality's  portion  of  cost,  p.  201 

Municipality  may  issue  bonds  to  pay  for  its  share  of  cost,  p.  202 
Nature  of,  p.  180,  n.  2 
Notice  of  assessment  by  benefits,  how  published,  p.  260 

of  improvement  resolution,  p.  198 


896  .  index. 

Assessments —  Continued. 
Notice — 

of  ordinance  for  sprinkling,  cleaning,  etc.,  p.  232 
New  provisions  of  code  as  to  collection  of  installments,  p.  270,  n.  3 
No  set-off  allowable,  p.  265,  n.  2 
Notes  in  anticipation  of  assessments,  p.  275 
On  municipal  property,  p.  229 
On  owner  of  life  estate,  p.  260 
On  school  property,  p.  230,  n.  2 
Order  of  procedure  in  street  improvements,  p.  196 
Ordinance  to  assess,  p.  215 

to  proceed  with  improvement,  p.  213,  214 

to  provide  for  sprinkling,  cleaning,  etc.,  of  streets,  p.  232 
Ordinances  to  remain  in  force  notwithstanding  change  of  municipality  j 

p.  182,  n. 
Payment  to  contractor,  p.  259,  263,  264,  n.  4 
Penalty  for  non-payment,  p.  264,  265,  n.  1 
Payment  of  part  not  an  estoppel,  p.  184,  n. 
Percentage  of  tax  value,  p.  180,  190,  n.  7 ;  p.  203,  n.  3 
Permitting  improvement  without  objection,  p.  184,  n. 
Personal  judgment,  p.  265,  n.  2 
Petition  for  improvement,  p.  222,  226 

assessments  cannot  exceed  value  cf  property,  p.  228,  n. 

authority  to  sign,  p.  227 

by  majority  of  foot  frontage,  p.  222 

how  majority  determined,  p.  222,  n.  2 

by  three-fourths  in  interest  of  abutting  property,  p.  226 
how  three-fourths  in  interest  determined,  p.  226,  n.  2 
when  less  than  three-fourths  sign,  p.  227,  n. 

burden  of  proof  as  to  signatures,  p.  223,  n.,  228,  n. 

change  of  plan,  p.  223,  n.,  228,  n. 

collateral  attack  on  council's  finding,  as  to  number  of  signatures, 
p.  222,  n.  2 

conditional  signing,  p.  227,  n. 

construction  of  petition,  p.  222,  n.  2 

estoppel  by  signing  petition,  p.  185,  n.,  p.  224,  n.,  p.  228,  n- 
to  deny  frontage,  p.  227,  n. 

jurisdiction  of  city  acquired,  when,  p.  228 

resolution  awarding  contract,  p.   224,  n. 

time  of  ownership,  p.  223,  n. 

when  petition  not  necessary,  p.  224,  n. 

withdrawal  of  signature,  p.  223,  n. 
Placing  on  tax  duplicate,  p.  270,  n.  1 
Plans,  specifications  and  profiles  to  be  prepared,  p.  193 
Planting  shade  trees,  assessments  for,  p.  231 
Pleading,  practice  and  evidence,  p.  266,  n. 
Power  of  assessment,  p.   180,  n.   2 
Power  to  levy  and  collect,  p.  80 
Procedure,  limited,  p.  194,  n.  2 

order  of,  in  street  improvements,  generally,  p.  196 
in  sewer  improvements,  p.  246 
in  sidewalk  improvements,  p.  236 
where  assessment  by  benefit,  p.  234 
Proceedings,  liberally  construed  to  secure  completion  of  work,  p,  273 

strictly  construed  in  favor  of  property  owner,  p.  273 

upon  re-assessment,  p.  269 
Property  assessed,  p.  186,  n.  3 

in  annexed  territory,  p.  188,  n.  3 

of  municipality,  p.  229 
Publication  of  improvement  resolution,  p.  194,  196,  n.  6 
Purposes  for  which  assessments  levied,  p.  179,  188,  n.  6 
Re-assessment,  p.  269 


INDEX.  897 

Assessments —  Continued. 

Receiving  compensation  for  land,  taken  not  estoppel  to  contest  assess- 
ment, p.  185,  n. 
Recovery  back,  p.  266,  n. 
Recovery  of  penalty,  p.  270,  n.  2 
Release  of  lien  of,  p.  263 
Repair,  of  sewers,  ditches,  etc.,  for,  p.  774 

of  streets  on  petition,  p.   226 
Resolution  of  necessity,  p.  193 

character  of,  p.  194,  n.  3 

due  passage  jurisdictional,  p.  194,  n.  3 

notice  of,  p.  198 

effect  of  want  of,  p.  199,  n.  2 

officer's  return  prima  facie  evidence  of  service,  p.  200,  n.  5 

"  owner  "  construed,  p.  200,  n.  3 

service  of,  p.  199,  n.  2 

sufficiency  of,  p.  199,  n.  2 

who  must  be  notified,  p.  200,  n.  4 

object  of,  page  195,  n. 

publication  of,  p.  194 

what  defects  in,  cured  by  curative  statute,  p.  267 
Right  to  pay  cash,  p.  195,  n. 
Second  assessment  only  invalid,  where  two  together  exceed  limitation, 

p.  204,  n.  3 
Second  establishment  of  grade,  p.  230 
Sewer  assessments,  p.  244 

bonds  for,  p.  253 

by  districts,  p.  251 

corner  lot  doctrine,  p.  254,  n. 

costs  and  expenses,  what  included,  p.  254,  n. 

defects  in  proceedings,  p.  252,  n.  2;  p.  254,  n. 

defenses  to,  p.  254,  n. 

joint  sewers,  by  two  or  more  municipalities,  p.  255 

limitation  on,  p.  201,  254,  n. 

local  drainage,  p.  204,  n.  6 

main  sewers,  p.  204,  n. 

ordinance  for  assessment,  p.  253 
for  construction,  p.  251 

resolution  of  necessity,  p.  250 
notice  of,^p.  221,  250 

where  constructed  without  general  plan,  p.  255 
Sidewalks,  curbing  and  gutters,  assessments  for,  p.  236 

after  notice  to  property  owner  to  construct  or  repair,  p.  239 

bonds  for,  p.  241 

bonds  in  anticipation  of,  p.  241 

collection  of,  p.  240 

corner  lot  doctrine,  p.  242,  n.  3 

limitation  on,  p.  240,  n.  3 

notice  of  resolution  to  construct,  p.  237 

order  of  procedure  in,  p.  236 

ordinance  for,  p.  242,  243 
how  passed,  p.  242,  n.  4 

resolution  to  construct,  p.  237 

rule  of,  p.  241 
Sidewalk  assessment  in  villages,  p.  774a 
Silence  not  an  estoppel  to  contest,  p.  184,  n. 
Special,  levy  and  collection,  p.  80 
Sprinkling  streets,  assessment  for,  p.  231,  774 
Street  between  two  municipalities,  p.  190,  n.  6 

Title  to  property  improved  acquired  after  improvement,  p.  189,  n. 
Unpaid  assessments  to  be  certified  to  auditor,  p.  270 


898  INDEX. 

Assessments — Continued. 

Uniformity  necessary,  p.  181,  n. 
Validity,  in  general,  p.  18 x,  n. 

of  certain  assessments  already  made,  p.  221 

prima  facie  valid,  p.  259,  n.  3 
What  costs  may  be  assessed,  p.  263,  n. 
What  costs  may  not  be  assessed,  p.  262,  263 
What  included  in  cost  of  improvement,  p.  262 
What  irregularities  cured,  p.  267 
When  certified  to  county  auditor,  p.  258 
When  new  action  to  enforce  may  be  commenced,  p.  271 
When  payable,  p.  263 
Who  are  owners,  p.  264,  n.  2 
Without  title  in  municipality,  p.  188,  n.  6 

Auctions,  p.  49. 

Power  of  municipality  to  regulate,  p.  49,  50 

Auditor  in  cities,  p.  333. 

Annual  report  of,  p.  336 

Annual  statement  of  receipts  and  expenditures,  p.  335 

publication  of,  p.  335,  336 
Certificate  of  funds  on  hand,  when  required,  p.  172 
Duties,  p.  333,  334 
Election,  p.  333 

Liability  for  wrongful  vouchers,  p.  334,  335 
Qualification,  p.  333 
Seal,  p.  335 

Statement  of  balances,  monthly,  p.  171 
Statements  of  receipts  and  expenditures,  made  to,  p.  334 
Term,  p.  333 

To  certify  to  election  of  certain  officers,  p.  336 
To  countersign  treasurer's  receipts,  p.  334 
Transfer  of  funds  by,  p.  547 

effect  of,  p.  547 
Uniform  accounting  by,  p.  334,  560 

Automatic  package  carrier  companies,  power  to  use  streets,  p.  715 
Avenue  companies,  p.  765 

Condemnation  of  roads  by  municipality,  p.  766 
Issue  and  sale  of  bonds  for  condemnation,  p.  767 
Municipality  may  surrender  roads  to,  p.  766 

Avenues;  see  Streets. 

B 

Ballplayer,    power  of  municipality  over,  p.  64 

Bathhouses,   appropriation  of  land  for,  p.  81 

Power  of  municipality  to  establish  and  maintain,  p.  61 

Baths,  free  public,  power  to  issue  bonds  for,  p.  288 
Power  of  municipality  to  establish,  p.  61 

Beal  law,  p.  47,  803 

Beggars,    power   of  municipality  over,  p.   64 

Bill  posters,   license  of,  by  municipality,  p.  77 
Constitutionality  of  license,  p.  53,  n.  2 

Billboards,     power  of  municipality  to  regulate  erection  of,  p.  52 
Prohibition  of  by  municipality,  p.  53,  n.  2 
Regulation  of  material  used  valid,  p.  53,  n.  2 

Billiard  tables,  regulation  of  by  municipality,  p.  45 

Bills  Of  exceptions,     before    mayor   or   police   judge,   p.   592 
Signing,  filling  and  transmission  of,  p.  592 


INDEX.  899 

Board  of  health,  p.  417 

Abatement  of  nuisances  by,  p.  425 

proceeding  when   order   of  board   is   neglected,   p.   426 
Abolition   of   in    certain    villages,    p.    595 
Action    against   physician    for    failure    to    report    contagious    disease, 

p.  428,  n/l 
Admission  of  persons  with  contagious  disease  into  public  institutions, 

p.  433 
Application  of  quarantine    rules,   p.   434 
Appointment  of  health  officer,  clerk,  etc.,  p.  421a 
Appointment   of  members,  p.  417 
Bond  issue  for  hospital  for  infectious  diseases,  p.  431 
Borrowing  money  in  time  of  epidemic,  p.  435 
Character  of,  p.  419,  n. 
Cities  of  the  first  grade  of  the  second  class;   garbage  crematories,  p. 

593 
Cities  of  the  second  grade  of  the  first  class,  sanitary  police,  p.  594 
Clerk  of,  duties,  p.  422 
Composition,    p.   417 

Contagious  disease  in  public  institutions,  p.  433 
Dairies,  inspection  of,  p.  436 

Defective  ordinance  establishing  board,  p.  418,  n.  3 
Destruction  of  infected  property,  p.  429 
Disinfection  of  house   in  which   person  has  been  ill   with   contagious 

disease,   p.  429 
Disposal  of  bodies  of  persons  dying  of  contagious  diseases,  p.  432 
Duty  upon  receipt  of  notice  of  infectious  disease,  p.  427 
Erection     of  temporary  buildings  and  hospitals,  p.  434 
Establishment  of  board,  p.  417 
Garbage  collection  and  removal  of,  p.  439 

funds  for,  p.  439 
Garbage  crematory  in  Columbus,   p.   593 
Hospital  for  infectious  diseases,  p.  431 

House  owner  to  give  notice  of  disease  to  board  of  health,  p.  427 
Ice   for   domestic   purposes,   p.    595 

penalty  for  violating  regulation  as  to  sale   of,   p.   595 

prohibition  of  sale  of,  p.  595 

regulation  of  sale  of,  p.  594 
Inspection  of  dairies,  etc.,  p.  436 
Limitation  on  quarantine  power,  p.   421 

Maintenance  of  persons  confined  in  quarantine  houses,  p.  430 
Mayor  president  of,  p.  417 
Meetings  of,  p.  422 
Members  of,  term  of,  p.  421 

Municipal  liability  for  damages  from  negligence  of.  p.  423,  n.  1 
Old  employes  to  retain  positions,  p.  421 
Orders   and   regulations    of,   p.   423 

Penalty    for   appearance    in    public    places   of   persons    suffering   with 
contagious   diseases,    p.    429 

for  failure  to  dispose  of  infected  property,  p.  429 

for  violating  order  of,  p.  423 

by  corporations,   p.    424 
Persons  in  quarantine  houses  not  to  attend  public  gathering,  p.  431 
Physician  to  give  notice   of  infectious  disease,  p.   427 
President  pro  tem.,  p.  422 
Prosecution   for    violations   of  orders,   p.    424 
Quarantine    hospitals,    p.    432 

Quarantine  of  persons  having,  or  having  been  exposed  to  contagious 
disease,  p.  428 


900  INDEX. 

Board  Of  health — Continued. 
Quarantine   regulation,   p.   419 
Quorum,  p.  417 

Registration  of  births  and  deaths,  p.  437 
*  book    for,    p.   422 

Registration  of  infectious  and  contagious  diseases,  p.  422 

Relation  to   schools,   p.  434 

Removal  of  corpse,  p.  437 

Sanitary  board,  appointment  of,  p.  440 

cities  of  the  second  class,  fourth  grade,  in,  p.  598 
advertisement  for  bids  for  contracts,  p.  599 
bonds  issued  by,  p.  601 
change  of  watercourses,  p.   600 

claim  for  damages  for  change  of  watercourses,  p.  600 
disbursement  of  money  by,  p.  600 
duties   of,   etc.,   p.    598 
establishment  of,  p.   598 
plans  for  disposal  of  garbage,  p.  599 

plans  for  the  disposal  of  garbage,  approval  of  plans,  p.  599 
powers  of,   p.  599 
reports  of,  p.  600 
sanitary   extension,    p.    602 
compensation  and  powers  of,  p.  440 
constitution  of,  p.  440 
Sanitary  fund,  p.  440 
Sanitary  plant,  p.  438 

appointment  of  sanitary  board,  p.  597 
condemnation  of  lands  for,  p.   596 
compensation  and   power  of  sanitary  board,  p.   597 
constitution  of  sanitary  board,  p.   597 
defined,  p.  596 
estimates  for,   p.   596 
funds  for,  p.  596 
levy  for  sanitary  funds,  p.  597 
Sanitary  police  in  Cleveland,  p.   594 
Sanitary  police  pension  fund,   p.   401 
beneficiu-ries  of  fund,  p.  404 
loard  successor  of  preceding  board,  p.  404 
custodian  of  fund,  p.  403 
investment  of  fund,  p.  4G4 
trustees  of,  p.  401 
board,    how    chosen,    p.    401 
term   of,   p.   402 
Sanitary  report,  p.  441 
Scavengers,    employment    of,    p.    438 

State  board,  appointment  of  health  officer  in  certain  cases,  p.  417 
approval  of  appointment  of  officer  in  villages,  p.  417 
conferences  with  health  officers,  p.  604a 
Statutes  relating  to,  generally,  p.  418,  n.  1.   . 
Township  board,  p.  593 
Unlawful  deposit  of  offal,  etc.,  in  streets,  p.  604a 

Board  of  public  safety,  se©  Public  Safety,  Directors  of. 
Board  of  public  service,  see  Public  Service,  Directors  of. 
Board  of  supervision  in  tne  erection  of  public  buildings  authorized,  p.  481 
Not  affected  by  new  code,  p.  481 

Bonds    (Municipal.) 

Additional  bonds  to  complete  certain  improvements,  p.  485 
Aggregate  amount  of  bonded  indebtedness  at  any  time,  p.  289,  294 
Aggregate  bonded  indebtedness  not  to  include  bond  issues  already 
authorized,  p.  294 


INDEX.  901 

Bonds —  Continued. 

Bidders'  compliance  with  advertisement,  p.  284,  n.  3 

Construction  of  statutes  for  issue  of,  p.  290,  n.  1 

Coupons,  p.  282 

Deficiency  bonds,  p.  286 

Effect  of  non- recital  of  purpose,  p.  281,  n.  2 

Estoppel  by  recitals,  p.  278,  n.  2,  281,  n.  2 

Exchange  coupon  bonds  for  registered  bonds,  p.  302 

For  certain  improvements,  heretofore  authorized,  to  remain  valid,  p.  485 

For  sewerage  purposes,  p.  282 

Form  and  requisites  of,  p.  282 

Highest  bidder  for,  p.  284,  n.  3 

In  anticipation  of  assessments,  p.  274 

injunction  against  issue,  p.  275,  n.  4 
sewer  assessments,  p.  253 
validity  of  bonds,  p.  275,  n.  4 
when  sold,  p.  285,  n.  4 
Interest  coupons,  p.  282 

Limit  of  issue  by  submission  to  popular  vote,  p.  290,  294 
Limit  of  authority  in  any  one  year,  p.  289 
Limitation,  when  not  applicable,  p.  292 
Limitation  on  deficiency  bonds,  p.  286 
Longworth  bond  act,  p.  287 

constitutionality  of,  p.  290,  n,  1 
Made  payable  outside  the  state,  p.  278,  n.  2 
Manner  of  issue  determined  by  council,  p.  290,  n.  4 
Must  be  explicit  on  face,  p.  281 
Not  to  be  sold  for  less  than  par  value,  p.  283 
Notice  of  sale  of,  p.  283 

Number  of  votes  necessary  on  submission  to  popular  vote,  p.  293 
Private  sale  of,  p.  283 
Proceedings  for  issue  of,  p.  287 
Procedure  on  submission  to  popular  vote,  p.  292 
Purpose  for  which  issued,  p.  287 
Purchase  of  for  value  without  notice,  p.  277,  n. 
Recitals,  p.  281 

Recital  of  purpose  of  issue,  p.  281 
Refunding  bonds,  p.  276 

not  to  increase  indebtedness,  p.  278,  n.  3 
purpose  of  statutes,  p.  276,  n.  2 
validity  of  in  general,  p.  277,  n. 
Refunding  of  corporate  indebtedness,  p.  283 
Registration  of,  p.  286 

Resolution  or  ordinance  declaring  necessity  of  issue,  p.  289,  290,  n.  4 
Right  to  reject  bids,  p.  284,  n.  3 
Sale  of,  p.  283 

advertisement,  sufficiency  of,  p.  284,  n.  4 
for  less  than  par,  effect  of,  p.  284,  n.  2 
Sinking  fund  refunding  bonds,  p.  285,  n.  4,  301 
Sold  to  highest  bidder,  p.  283 

Submission  to  one  vote  of  several  improvements,  p.  290,  n. 
Sufficiency  of  recital  of  purpose,  p.  281,  n.  2 
Tax  levied  for  payment  of,  p.  292 
To  be  offered  to  Sinking  Fund  Trustees,  p.  282 
To  extend  time  of  payment  of  certain  indebtedness,  p.  276 
Validity  of  in  general,  p.  277,  n. 
Vote  of  council  necessary  for,  p.  288 
Vote  on  deficiency  bonds,  p.  286 
When  recital  of  purpose  of  issue  required,  p.  281,  n.  2 

Bonds    (Official),  see  under  Officers. 


902  INDEX. 

Borrowing  money,  p.  274 
Bonds;  see  Bonds. 
Certificate  of  indebtedness,  p.  274 
Implied  power  of,  p.  275,  n. 
In  anticipation  of  general  revenue  fund,  p.  274 

limitation,  p.  274 
Limitation  on  loans,  p.  274 

Notes  in  anticipation  of  special  assessments,  p.  275 
Power  of,  p.  80,  274 

Bounties,  p.  639 

Bowling   alleys ;      effect  of  forbidding,  p.  45,  n.  1 
Regulation  of  by  municipality,  p.  45 

Brannock  law,  p.  809 

Bridges- 
Bridge  companies,  p.  7G2 

Bridge  fund,  payments  to  certain  municipalities,  p.  757,  758 
Commissioners  must  build  in  certain  municipalities,  p.  756 
Construction  and  repair  of  by  county  commissioners,  p.  755 
Control  of  by  council,  p.  112,  112,  n. 
Levy  of  taxes  for,  p.  756,  757,  758 
Liability  for  defects  in,  p.  118,  n. 
Power  to  appropriate  property  for,  p.  81 
Power  to  establish,  etc.,  p.  56 
Power  to  issue  bonds  for  construction  or  repair  of,  p.  289 

Briers  and  Canada  thistles,  p.  830 

Buildings,    see  Public  Buildings. 

Alterations   in  and  additions   to;    power  of  municipality  to  regulate, 

p.  52 
Inspection  of,  p.  739 

appeal  of  owner  on  refusal  of  certificate,  p.  740 

certificate  as  to  examination,  p.  739 

dispensed  with  in  certain  cases,  p.  741 

duties  of  factory  men,  hotel  keepers,   etc.,   as  to   fire   escapes,   p. 
742 

duties  of  inspector,  p.  742,  n.   1 

duty  of  mayor  to  require  fire  escapes,  p.  743 

examination  of  public  hall  as  to  safety  in  case  of  fire,  p.  739 

discretion  of  inspector  not  reviewable  by  court,  p.  53,  n.  4 

inspector  to  have  access  to  buildings,  p.  742 

mayor  to  examine  certain  buildings  annually,  p.  743 

penalty  against  owner,  p.  740 

power  of  municipality  to  provide,  p.  52 

re-examination  in  case  change  of  buildings,  p.  739 

when  inspections  to  be  made,  p.  741 
Numbering  of,  power  of  municipality  to  regulate,  p.  52 
Power  of  municipality  to  regulate  erection  of,  p.  52 
Prevention  of  loss  of  life  in  halls,  etc.,  p.  743,  a. 
Repair  of,  power  of  municipality  to  regulate,  p.  52 

Burglars;    power  of  municipality  over,  p.  64 

Burns  law,  p.  173,  n.  l 

C 
Canada  thistles,  p.  830 

Canals,    appropriation  of  land  for,  p.  81 
Effect  of  grant  to  city,  p.  58,  n.  1 
Power  of  municipality  over,  p.  57 

Canal  wall;    assessment  for,  p.  58,  n.  1 


INDEX.  90  v 

Cemeteries,  p.  67,  724 

Appropriation  of  land  for,  by  municipality,  p.  81 

By-laws  governing,  p.  69 

Council  may  provide,  p.  67 

Duties  of  trustees,  p.  68 

Enlargement  of  grounds,  p.  72 

Improvement  of,  p.  727 

Limitation  on  appropriation  for,  p.  85 

Managing  board,  p.  68,  n.  1 

Municipal  liability  for  damages  in  public,  p.  68,  n.  2 

Permanent  fund  for  care  of  lots,  p.   70 

Police  power  of  council  over,  p.  67 

Power  of  council  as  to  public  cemeteries,  p.  728 

to  provide,  p.  55,  67 

to  regulate,  p.  55 
Power  to  issue  bonds  for,  p.  288 
Purchase  of  land,  p.  727 
Record  of  proceedings,  p.  71 
Sale  of  lots,  p.  69 
Suits  on  behalf  of,  p.  69 
Transfer  of,  to  private  company,  p.  727 
Union  of  cities  and  townships,  for  cemetery  purposes,  p.  72 

appropriation  of  property,  p.  724,  727 

control  of  cemetery,  p.  725 

election  of  trustees,  p.  72 

managing  board,  p.  73,  n.  1 

ordinances  as  to,  how  enforced,  p.  728 

organization  of  board,  p.  73 

title  to  cemetery,  p.  724 
Villages,  appointment  of  board  in,  p.   731 
Within  municipality;  title  to,  p.  67 

Census;   power  of  municipality  to  take,  p.  63 

Certain   acts,  not  altered,  amended  or  repealed  by  new  code,  p.  481 

Certificate,    of  indebtedness;  see  Borrowing  Money. 

Certificate  Of  funds  on  hand,   by  auditor  or  clerk,  when  required,  p.  171 

Change  of  grade,   damages  for ;  see  Damages  to  Abutting  Property. 

Change  of  name   of  village  or  hamlet,  p.  24,  838 
Of  street,  p.  131 

Charitable  and  reformatory  institutions,    - 

Board  of  State  Charities,  powers,  concerning,  p.  606 
Children's  homes,  see  Children's  Homes. 
Control  of,  p.  351 

County  commissioners  may  aid  certain  institutions,  p.  609 
County  commissioners  may  visit,  p.  605 
County  visitors,  605 

Governor  may  order  investigation,  p.  606 
Hospitals,  see  Hospitals. 

Homes  for  friendless,  see  Homes  for  Friendless. 
Houses  of  refuge,  see  Houses  of  Refuge. 
Infirmaries,    see   Infirmaries. 
Morgues,  see  Morgues. 

Penalty  for  denying  or  obstructing  investigation,  p.  605 
•    Report  of  county  visitors,  p.  606 

Visitation  by  county  commissioners,  p.  605 
Workhouses,  see  Workhouses. 

Chattel    mortgages,    depository   for   in   case   of   merger   of   township    in 
municipality,  p.  7,  n. 


904  INDEX. 

Chief  officers  Of  Cities;   see  Officers. 

Children's  homes,    in  cities  of  first  and  second  class,  p.  636 
Counties  and  cities  may  aid,  p.  609 
Management  of,  p.  351 

Cigarette   tax,   distribution,  p.  834 

Cincinnati  Southern  Railroad,  p.  696 

Cincinnati    water    works,   law  not  affected  by  new  code,  p.  481 
See  Water  Works. 

Cities,     list  of,  under  Secretary  of  State's  proclamation,  p.  849 
Organization  of,  p.  303 
Population  of  municipalities  necessary  to  constitute,  p.  1 

City  hall  commission,  authorized,  p.  482 

Civil  engineer;    duties  and  compensation,  p.  550 

Classification,    of  municipalities,  p.  1 
Former,  p.  1,  n.  1 

Grades  and  classes  under  new  code,  p.  31,  n.  6 
Judicial  notice  of,  p.  7,  15 
What  permissible,  p.  3,  n. 

Clerk;  certificate  as  to  election  of  certain  officers,  record  of  by  cleik  of 
court,  p.   544 
Council,  p.  310 

term,  p.  310 

as  city  clerk,  p.  310 
Duties  of   respecting  annexation  of  territory  to  municipality  on   its 

application,  p.  28 
In  cities,  p.  310 
In  villages,  p.  451 

correction  of  journal,  p.  452,  n.  2 

duties,  p.  451 

duty  in  case  of  annexation  of  territory,  p.  28 

election  of,  p.  451 

penalty  to  give  certain  certificates,  p.  454 

qualifications  of,  p.  451 

report  to  auditor  of  state,  p.  453 

seal,  p.  451,  452,  n.  3 

shall  certify  to  court  election  of  certain  officers,  p.  453 

statement  of  receipts  and  expenditures,  p.  452 

term  of,  p.  451 

to  deliver  books,  etc.,  to  city  auditor,  p.  455 

to  perform  duties  devolved  upon  auditors  in  cities,  p.  451,  454 
Of  police  court,  see  Police  Court. 

Cleveland  city  hall  commission,    p.  484,  732;  see  Public  Buildings. 

Cleveland  group  plan    for   public   buildings,    p.   484,    737 ;    see    Public 
Buildings. 

Cleveland  market  house  commission,  p.  484,  722;  see  Markets. 

Coal;   power  of  municipality  to  regulate  weighing  and  measurement  ofr 
p.  52 

Collection  of  garbage,  etc.;  under  Board  of  Health. 


INDEX.  905 

Concerts,  public;  power  of  municipality  to  maintain,  p.  61 

Condemnation;    see  Appropriation  of  Property. 

Conduits;    for  hot  water  heating,  p.  55 

for  telephone,  etc.,  wires,  p.  716,  718 
restoration  of  streets,  bond  for,  p.  720 

Constables,   in  case  of  merger  of  township  in  municipality,  p.  6 

Constitutional    Law;   annexation  of  territory  as  affecting  lands  annexed 
for  prior  debts  of  municipality,  p.  26,  n.  2 
Annexation   of   territory   on   application   of  municipal   corporation,   p. 

31,  n. 
Code,  constitutionality  of,  p.  1,  n.  1 
De  facto  governments,  constitutionality  of.  p.  480,  n. 
Effect  of  unconstitutionality  of  portion  of  new  code,  p.  515,  515,  n.  1 
Municipality  receiving  trust  funds  for  educational  purposes,  p.  486a 

Contagious,  malignant  and  infectious  diseases,  power  of  municipal- 
ity to  provide  against,  p.  55 

Contiguous  Or  adjacent  territory;  what  is  with  respect  to  annexation 
of  territory  on  application  of  municipal  corporation,  p.  26, 
n.  1,  31,  n.  3 

Contingent  fund;     see  Taxation. 

Contracts,  by  Board  of  Public  Service ;  see  under  Public  Service,  Direct- 
ors of. 

By  officers,  see  under  Officers. 

Council  restricted  as  to,  p.  172,  539b 

Certificate  of  auditor  of  money  in  treasury  necessary,  p.  172 
not  required  as  to  funds  not  raised  by  taxation,  p.  173,  n.  2 

Employment,  auditor's  certificate  required,  p.  174,  n. 

Estoppel  of  municipality,  p.  372 

Exception  to  requirement  of  auditor's  certificate,  p.  173 

For  certain  improvements  heretofore  authorized,  to  remain  valid, 
p.  485 

For  public  improvements,  see  Improvements. 

Officers  interested  in,  see  under  Officers. 

Ps'd.  for  bv  nssessnipTit  or  bonds j   auditor "s  ot*TfiHofkt^  r\nt  npr.es- 
sary  for,  p.  174,  n. 

Patented  articles  not  to  be  required,  p.  177 

Separate  bids  for  work  and  materials  in  certain  cases,  p.  380 

Council;  In  cities,  p.  303 

abandonment  of  cemeteries,  p.  730 

annexation  of  municipality  or  additional  territory,  duties  of 
council,  see  Annexation. 

auditor  may  be  elected  clerk,  p.  308,  n. 

change  of  boundary  of  wards,  p.  310,  n. 

clerk  of,  p.  307 

contracts  authorized  by  council  to  be  entered  into  by  proper 
officers,  p.  316 

distinction  between  ordinances  and  resolutions,  p.  313,  n. 

duties  of  new  council  in  organizing  cities,  p.  306,  n. 

effect  of  member  holding  other  office,  p.  310,  n.  2 

effect  of  vacancy  as  to  number  of  members  constituting  ma- 
jority, p.  310,  n. 

expulsion  of  members,  p.  311 

fix  salaries  and  bonds  of  municipal  officers,  p.  512 

how  elected,  p.  303 

journal,  p.  311 

judge  of  election  and  qualification  of  members,  p.  309 

lighting  of  railways  and  bridges,  p.  674 

limitations  of  power  strictly  construed,  p.  312,  n.  2 

majority,  p.  315,  n.  7 


900  INDEX. 

Council — Continued. 
In  cities — 

members,  holding  until  successor  qualifies,  p.  303,  304,  n.  3 
how  elected,  p.  303,  305 
to  hold  no  other  office,  p.  309 
mode  of  election  of  officers,  p.  307,  n.  2 

not  to  be  interested  in  contract  with  city,  p.  309,  310,  n.  3 

not  to  hold  other  office,  p.  309 

number,  compensation  and  bond  of  officers,  fixed  by,  p.  512 

number  of  members,  p.  303,  304,  n. 

officers  of,  p.  307 

ordinances;  see  Ordinances  and  Resolutions. 

powers  of  council,  p.  316 

to  provide  public  depositaries  for  money,  p.  338 

president  of,  p.  332 

not  a  member  constituting  quorum,  p.  333,  n.  2 
pro  tern,.,  p.  333 

provision  as  to  number  of  members  construed,  p.  303,  n.  2 

provision  for  overseers  of  the  poor,  p.  633 

quorum,  p.  308 

qualification  of  members,  p.  309 

removal  of  heads  of  departments  and  officers  upon  charges  filed 
by  mayor,  p.  508 

rules,  p.  311 

required  to  divide  city  into  wards,  p.  305 

salary  of  members,  p.  325 

salaries  of  municipal  officers,   clerks  and   employes  fixed   by, 
p.  325 

special  meetings,  p.  308,  316 

suspension  of  heads  of  departments  and  officers  pending  hear- 
ing, p.  509 

term  of  members,  p.  303 

to  determine  the  number  of  members  of  Board  of  Public  Serv- 
ice, and  Board  of  Public  Safety,  p.  306,  350,  383 

vacancies  in,  p.  309 

term  of  appointee  to  fill,  p.  310,  n.  5 
when  exists,  p.  310,  n.  5 

wards  to  be  defined  by  Board  of  Public  Service  on  failure  of 
Council  to  act,  p.  305 
In  villages,  p.  444 

compensation  of,  p.  445 

compensation  and  bonds  of  municipal  officers  fixed  by,  p.  444, 
445 

contracts  made  by,  p.  446 

executed  by  mayor  and  clerk  in  the  name  of  the  village, 
p.  446 

election  of  members,  p.  444 

employes  for  villages  provided  by,  p.  445 

employes,  removal  of,  by,  p.  445 

management  and  control  of  finances  and  property  of  corpora- 
tion, p.  446 

ordinances;  see  Ordinances  and  Resolutions. 

platting  streets,  p.  456 

powers  of,  p.  445 

president  pro  tern.,  p.  445 

salaries  fixed  by,  not  to  be  altered  during  term  of  office,  p.  444 

term  of  members,  p.  444 

to  provide  for  care  of  parks  and  institutions,  p.  456 

vacancy,  how  filled,  p.  445,  449,  n.  7 

veto  power,  none  in  mayor,  p.  445 
Member  of  not  to  be  interested  in  contract,  p.  172 
Powers  conferred  on  municipality,  exercised  by,  p.  327 
Power  as  to  public  peace,  p.  64 

to  license,  p.  73 


INDEX.  907 

Council —  Continued. 
Power — 

to  provide  cemeteries,  p.  67,  728 

to  lay  gas  pipes,  p.  659 

to  require  filling  of  lots,  p.  65 

to  regulate  ferries,  p.  79 

to  fix  rate  of  transportation,  p.  79 

to  regulate  width  of  tires,  p.  79 
Restricted  as  to  contracts,  scope  of  restriction,  p.  172,  539b 
Territory    annexed    to    municipality    on    application    of    inhabitants, 

duties  of  council,  p.  28 
Voting  precincts  established,  p.  539b 

County  commissioners;    duties  with  respect  to  annexation  of  territory, 

p.  27 
County   ditches  in  municipal  limits,  see  under  Ditches  and  Drains. 

County  infirmary,  directors,   in   case   of   merger   of   township   in   munici- 
pality, p.  7,  n. 

County    recorder ;  duties  of  respecting  annexation  of  territory  to  munici- 
pality on  application  of  its  inhabitants,  p.  29 
To  make  record  of  proceedings  in  annexation  of  one  municipality  to 
another ;  see  Annexation  of  Territory,  etc. 

County   treasurer;  advanced  payments  to  municipal  authorities,  p.  546 
Having  charge  of  city  or  school  funds,  p.  541 
Payments  to  municipal  treasurer,  p.  544,  545,  546 

Crematories.     Appropriation  of  land  for,  p.  81 
Power  of  municipality  to  provide  public,  p.  55 
Power,  to  issue  bonds  for,  p.  288 
to  regulate,  p.  55 

Criminal   jurisdiction  of  village  over  pollution  of  water,  p.  468 

Cruelty  to  children  and  animals ;      affidavit  in  such  cases,  p.  589 
Agents  to  enforce  law,  appointment,  p.  841a 
Attorney  employed  to  prosecute,  p.  589 
Fine  in  such  cases,  p.  589 
Jurisdiction  in  such  cases,  p.  589,  591 
New  trial,  p.  590 
Prosecutions  for,  p.  589 
Waiver  of  jury  in  such  cases,  p.  590,  n.  2 

Culverts;   power  to  issue  bonds  for,  p.  289 

Curative  provisions — 

As  to  assessments,  p.  221,  267 

Respecting  certain  county  instruments  and  proceedings,  p.  835 
Saving  of  rights,  ordinances,  etc.,  before  new  code,  p.  477 
Street  railway  grants,  p.  156 
Curbing,  construction,  repair,  and  assessment,  p.  236 
See  Sidewalks. 

D 

Damages  for  personal  injuries;  claims  need  not  be  filed  before  suit,  p. 
273,  n.  1 

Damages  to  abutting  property  from  street  improvements. 
Application  for  a  jury,  p.  217 
Assessment  of,  p.  217 

Assessments  on  completion  of  improvement,  p.  272 
Attorney's  fees  allowed  on  failure  to  pay  award,  p.  218,  n.  4 
Basis  of  recovery,  p.  208,  n. 
Claim  cannot  be  increased,  p.  208,  n. 


908 


INDEX. 


Damages  to  abutting  property — Continued. 

Claims — 

to  be  filed  sixty  days  before  suit  is  begun,  p.  272 
Constitutionality  of  statute,  p.  207,  n.  1 
Damages,  cannot  be  included  in  assessment,  p.  211,  n. 

included  in  dedication  or  appropriation,  p.  211,  n. 
Deferring  inquiry  until  after  improvement  constitutional,  p.  213 
Determination  of  council  to  proceed  with  improvement,  p.  213 
Effect  of  failure  to  file  claim,  p.  208,  n. 
Effect  of  sale  of  property,  p.  207 
Establishment  of  an  unreasonable  grade,  p.  209,  n. 
Estoppel  to  deny  filing  of  claim,  p.  218,  n.  4 
Injunction,  p.  211,  n. 
Inquiry  into,  p.  217 

Jurisdiction  of  probate  court  to  assess,  p.  217,  n.  2 
Lands  not  abutting  on  improvement,  p.  207,  n.  3 
Measure  of  damages,  p.  210,  n. 
Ordinance  'to  proceed,  p.  213 

Owner  not  allowed  damages  cannot  enjoin  improvement,  p.  220,  n.  2 
Owner  of  unimproved  lot  cannot  recover,  p.  210,  n. 
Property  owner  entitled  to  interest,  p.  210 
Proceedings  of  jury,  p.  271 
Recovery  limited  to  amount  claimed,  p.  208,  n. 
Waiver  of  claims,  p.  207 
What  claims  must  contain,  p.  207 
What  is  a  reasonable  grade,  p.  210,  n. 
What  is  an  improved  lot,  p.  210,  n. 
What  is  a  change  of  grade,  p.  209,  n. 
When  damages  assessed  must  be  paid,  p.  218,  n.  4 
When  damages  payable,  p.  210 
When  filing  claim  unnecessary,  p.  208,  n. 
Where  no  notice  received  suit  may  be  brought,  p.  273,  n.  1 
Who  may  claim  damages,  p.  207,  n.  2. 

Deaths,  registration  of,  see  Board  of  Health. 

Dedication   of  streets;  see  under  Streets. 

Deed  by  municipal  corporation;  see  under  Property. 

Definitions  of  certain  words,  p.  827 

Department  of  public  safety;  see  Public  Safety,  Directors  of. 

Department  of  public  service;  see  Public  Service,  Directors  of. 

Department  of  purchase,  construction  and  repair,  p.  63  b. 

Destroyed  records ;  see  under  Plats. 

Detachment   Of  territory  from  municipal  corporations,  p.  25,  40 
Ordinance  for,  p.  40 
Petition  for,  p.  40 

Proceedings  of  county  commissioners  for,  p.  40 
Record  of,  p.  40 
Unplatted  farm  lands,  how  detached,  p.  41 

decree  for,  p.  41 

petition  for  detachment,  p.  41 

proceedings  under  petition  for,  p.  41 

Devise;   power  of  municipality  to  receive,  p.  43 
Directors  of  public  safety;  see  Public  Safety,  Directors  of. 
Directors  of  public  service ;    see  Public  Service,  Directors  of. 
Disorderly  assemblages ;  power  of  municipality  to  prevent,  p.  44 


INDEX.  909 

Ditches  and  Drains — 

Appropriation  of  lands  for,  p.  81 

County  ditches  in  municipal  limits,  p.  769 

Power  of  municipality  over,  p.  57 

Dockage;  regulation   of  by  municipality,   p.   56 

Docks;    power  of  municipality  to  establish,  etc.,  p.  56 
Power  of  municipality  over,  p.  57 

Dogs;    power  of  municipality  to  regulate  running  at  large  of,  p.  51 

Dog  tax;    power  of  municipality  to  impose,  p.  51,  n.  2 

Draining  and  filling  Of  lots  by  municipality  at  owner's  expense,  p.  67 

Driving   fast;    power  of  municipality  to  regulate,  p.  50 


Educational    purposes,  gifts  in  trust  for,  p.  844 

Elections.      Officers  of  municipalities,  see  under  Officers. 

Special  election  not  to  be  held  unless  provided  by  act,  p.  845 

Upon  question  of  incorporation  of  village  on  lands  not  platted,  p.   17 

Upon  question  of  bond  issue,  p.  292 

Upon  question  of  tax  levy,  p.  159 

Upon  question  of  local  option,  p.  804 

Upon  question  of  residence  district  option,  p.  809 

Upon  question  of  improving  natural  gas  plant,  p.  666 

Upon  question  of  drilling  oil  or  gas  well,  p.  668 

Upon  question  of  annexation  of  one  municipality  to  another,  p.  35 

Voting  on  submitted  questions,  p.  845 

Electrical    appliances;  power   of   municipality  to  regulate  the   construc- 
tion of.  p.  52 

Electric  light  — 

Appropriation  of  property  for  electric  light  plants,  p.  81 
Contract  with  private  company  for  supplying,  p.  665 

certificate  of  auditor  not  required  for,  p.  173 

restrictions  on,  p.  665 

scope  of  power,  p.  665,  n.  1 
Lease  of  plant  from  private  company  by  municipality,  p.  173 

certificate  of  auditor  not  required,  p.  173 
Municipal  plant,  appropriation  of  property  for,  p.  81 

management  of,  p.  351 

power  to  establish  and  maintain,   p.   54 

power  to  issue  bonds  for,  p.  288 

power  to  purchase  or  lease  lands  for,  p.  54 
Private  company,  p.   716 

may  supply  both  gas  and  electricity,  p.  669. 

powers  of  company,  p.  717 

regulation  of  price  of  electric  light,  p.  656 

right  to  occupy  streets,  how  acquired,  p.  715 

subject  to  provisions  applicable  to  magnetic  telegraph  companies, 
'  p.  715 

subways  for  wires  in  Cincinnati,  p.  718 

validity  of  prior  contracts,  p.  717 

Elevators;   power  of  municipality  to  regulate  construction  of,  p.  52 

Emergencies,  payment  of  obligation  arising  from,  p.  168,  169,  n.  6 
Power  to  issue  bonds  for,  p.  288 

Eminent   domain;  see  Appropriation  of  Property. 


910  INDEX. 

Equalization;  see  Taxation. 

Excavations;     see  Injuries  From  Excavations. 

Exceptions;    see  Bills  of  Exceptions 

Execution  against  municipal  property,  p.  62  n. 
Exemptions  from,  p.  62  n. 

Exhibitions ;  license  of,  p.  73 

Explosives;    no  municipal  power  to  declare  forfeiture  of,  p.  51,  n.  1 

Power   of   municipality   to   regulate   transportation,   keeping   and   sale 
of,  p.  51 

Extending  Or  enlarging  building  or  other  improvement;  power  to  issue 
bonds  for,  p.  288 


Farm   schools;   appropriation  of  land  for,  p.  81 
Cleveland,  p.  59,  n. 
Power   of   municipality   to   establish,    p.    59 

Fees,     of  officers,  see  under  various  Officers. 
To  be  paid  into  the  city  treasury,  p.   326 

Fences;    power  of  municipality  to  regulate  erection  of,  p.  52 

Femes;   power  of  council  to  establish,  regulate  and  license,  p.   79 
Power  of  municipality  to  license,  p.  57 

Finance;    see  Borrowing  Money,  Bonds,  and  Sinking  Fund. 

Fines  and  imprisonment,  p.  590 

Constitutionality  of  commitment  in  default  of  payment,  p.  591,  n.  1 

How  fines,  etc.,  recovered,  p.  590 

Imprisonment  in  county  jail  may  be  prohibited,  p.  591 

Imprisonment,  where  to  be  made,  p.  591 

Limitation  of  fines  imposed  by  municipality,  p.  63,  63a,  n. 

Suits  for  recovery  of,  p.  590 

Fire  department: 

In  general: 

bonds  for,  p.  289 

combustible  materials,  removal  of  may  be  ordered  by  state  marshal 

or  chief  of  department,  p.  554 
fire  engineer,  duties  and  compensation,  p.  550 

appeal  from  order,  p.  554. 

right  of  officers  to  enter  buildings,  p.  554 
investigation   of   fires   by   state   marshal    or   chief   of   fire    depart- 
ment, p.  554 
liability  for  negligence  in,  p.  389,  n.  1 
pension  fund  in,  p.  392 

beneficiaries  of  fund,  p.  396 

board,  how  chosen,  p.  393 

successor  to  similar  boards  now  existing,  p.  396 

creation  of  fund,  p.  394 

custodian  of  fund,  p.  396 

investment  of  fund,  p.  396 

officers  of  board,  p.  394 

rules  and  regulations,  p.  396 

term  of  members  of  board,  vacancy,  p.  393 


INDEX.  911 

Fire  department — Continued. 

In  general: — 

trustees  of,  p.  392 
power  of  municipality  over,  p.  53 
power  to  erect  buildings  for,  p.  53 

to  organize  and  maintain,  p.  53 

to  purchase  and  hold  apparatus  for,  p.  53 
In  cities,  p.  387 

appointment  and  removal  of  officers,  see  Merit  System 

appointment  of  chief,  p.  388 

board  of  public  safety,  manages,  p.  385 

chief  of  fire  department,  p.  387 

powers  of,  p.  389 

suspension  of,  p.  390 
classification  of  service  in,  p.  391 
composition  of,  p.   388 
contracts  relative  to,  p.  385,  391 
emergency  firemen,   p.   387 
general  duties  of,  p.  389 

management  and  control  of  department,  p.  385,  388 
merit  system  in,  see  Merit  System 
officers    and   employes    in,    appointment   and   removal,    see   Merit 

System. 
relief  of  members,  out  of  fire  funds.,  p.  392 
In  villages:  p.  472 

additional  tax  for,  p.  786 
appointment  of  firemen,  p.  472 
chief  of,   p.  472 

duties  of,  p.  475 
firemen  provided  by  council,  p.  472 
fire  chief,  p.  472 

appointment,    p.   472 

duties,  p.  475 

qualifications,  p.  472 
liability  for  negligence  in,  p.  473,  n. 
powers  of  fire  chief,  p.  475 
organization  of,  p.  472 
purchase  of  supplies  by  council,  p.  473 
regulation  of,  by  council,  p.  472 

of  erection  of  structures,  p.  473 

Fire  engineer;  duties  and  compensation,  p.  550 

Fire  escapes ;  power  of  municipality  to  regulate  construction  of,  p.  52 

Fire ;  no  municipal  liability  for,  resulting  from  failure  to  enforce  ordinance, 

p.  51,  n.  1 
Flags  on  buildings,  p.  835 

Forms  — 

Advertisement  for  bids,  by  board  of  public  service,  p.  376 
,  for  lease  of  real  estate,  p.  107 

for  sale  of  real  estate,  p.  107 
for  street  railway  grant,  p.  155 
Affidavit,  of  justification  of  surety  on  contractor's  bond,  p.  380 

of  circulation  of  German  newspaper,  p.  322 
Annexation  commissioners,  ordinance  approving  report,  p.  37 

resolution  appointing,  p.  37 
Annexation  of  territory,  by  municipality,  petition  for,  p.  34 
upon  petition  of  inhabitants,  notice  of  petition,  p.   28 
order  of  commissioners  therefor,  p.  28 
ordinance  accepting  application  therefor,  p.  29 
petition  for,  p.  26 


912  INDEX. 

Forms—  Continued. 

Annexation,  ordinance  authorizing,  p.  33 
ordinance  submitting  to  vote,  p.  36 

Application,  to  assess  compensation  for  property  appropriation,  p.  89 
to  assess  damages  resulting  from  improvement,  p.  218 
to  construct  street  railway,  p.  149 

Appropriation  of  property,  application  to  assess  compensation,  p.  89 
entry  ordering  impaneling  of  jury,  p.  94 
offer  to  confess  judgment,  p.  99 
judgment  entry,  p.  97 

notice  of  application  to  assess  compensation  for,  p.  91 
oath  of  jury,  p.  96 
ordinance  for,  p.  88 
resolution  declaring  intent,  p.  88 
verdict,  p.  96 

Assessments,  by  benefits,  notice  of  estimate,  p.  261 

resolution  appointing  equalizing  board,  p.  261 
report  of  estimating  board,  p.  234 
resolution   appointing  estimating  board,   p.   234 
certificate  of  unpaid,  to  county  auditor,  p.  259 
claims  for  damages   resulting   from   improvement,  p.   212 
judgment  in  proceedings  to  assess  compensation,  p.  220 
notice  of  completion  of  plan  for  sewerage,  p.  248 
notice  to  construct  or  repair  sidewalks,  p.  238 
notice  to  owners  of  property  to  be  assessed,  p.  200 
ordinance  for  construction  of  sewers,  p.  252 
ordinance  to  assess  for  sidewalk  improvements,  p.  242 
ordinance  to  assess  for  street  improvement,  p.  215 
ordinance  to  assess  for  sidewalk  improvements,  p.  242 
ordinance  to  assess  for  street  improvement,  p.  215 
ordinance  to  improve  after  majority  petition,  p.  225 
ordinance  levying  for  sidewalk  improvement,  p.  242 
ordinance  levying  for  street  improvement,  p.  215 
ordinance  to  proceed  after  majority  petition,  p.  225 
ordinance  to  proceed  with  improvement,  p.  214 
petition  for  improvement  by  majority  owners,  p.  224 
petition  for  improvement  by  three-fourths  in  interest,  p.  228 
precipe  in  application  to  assess  compensation,  p.  219 
resolution  declaring  necessity  for  construction  of  sewers,  p.  250 
resolution  declaring  necessity  for  improvement,  p.   197 
resolution  to  construct  or  repair  sidewalks,  p.  238 
resolution  to  improve  after  majority  petition,  p.  225 
return  by  officer   serving  notice   upon   owners   of   property  to   be 

assessed,  p.  201 
return  of  notice  to  construct  or  repair  sidewalks,  p,  239 
verdict  in  assessment  of  damages  resulting  from  improvement,  p. 
219 

Bid  for  contract,  p.  376 

Board  of  health,  burial  permit,  p.  438 
notice  to  abate  nuisance,  p.  426 
ordinance  establishing,  p.  419 

Bond,  accompanying  bid  for  contract,  p.  377 
for    completion   of   contract,   p.    379 
municipal,  p.  280 

notiee  of  election  on  question  of  issuing,  p.  295 
notice  of  sale  of,  p.  285 

ordinance  to  issue  after  approval  of  electors,  p.  295 
ordinance  to  issue  without  popular  vote,  p.  291 
resolution  declaring  necessity  of  issuing,  p.  294 

Buildings,  ordinance  to  regulate  erection  of,  p.  474 
petition  to  regulate  erection  of,  p.  474 

Burial  permit,  p.  438 


INDEX.  913 

Forms — Continued. 

Certificate  to  auditor  of  unpaid  assessments,  p.  259 

of  election  to  city  office,  p.  337 

of  election  to  village  office,  p.  454 

of  posting  ordinance,  p.  323 

of  publication  of  ordinance,  p.  322 

to  secretary  of  state  by  village  clerk  after  election,  on  surrender 
of  corporate  powers,  p.  9 
Claims  for  damages  resulting  from  improvement,  p.  212 
Confess  judgment,  offer  to  in  appropriation  proceedings,  p.  99 
Contract,  p.  377 
Contracts  by  Board  of  Public  Service,  advertisement  for  bids,  p.  376 

affidavit  of  justification  of  surety  on  contractor's  bond,  p.  380 

bond  accompanying  bid,  377 

bond  for  completion  of  contract,  p.  379 

contract,  p.  377 

resolution  accepting  bid,  p.  377 
Coupon  of  municipal  bond,  p.  281 
Damages,  application  to  assess,  p.  218 

claims  for,  resulting  from  improvement,  p.  212 
Declaration  and  order  of  township  trustees  after  election,  for  incorpo- 
ration of  village,  p.    18 
Decree  for  detachment   of  unplatted  farm  lands  from  municipal   cor- 
poration, p.  42 
Deed  to  real  estate  by  municipal  corporation,  p.  107 
Detachment  of  unplatted  farm  lands  from  municipal  corporation,  de- 
cree for,  p.  42 

petition  for,  p.  41 
Election,  certificate  of,  p.  557 

to  city  office,  p.  337 

on  incorporation  of  village,  notice  of,  p.  17 

ordinance  ordering,  for  surrender  of  corporate  powers,  p.  9 

proclamation,  p.  556 
Entry  ordering  impaneling  of  jury  for  assessment  of  compensation  for 

property  appropriated,  p.  94 
Finding  and  order  of  township  trustees  as  to  incorporation  of  village, 

p.    16 
Fire  department,  ordinance  organizing,  p.  388 
Franchise  for   street  railway,  ordinance  granting,   p.   155 
Gas,   ordinance   regulating  price   of,  p.   658 
German  newspaper,  affidavit  of  circulation  of,  p.  322 
Incorporation  of  villages,  petition  for,  p.  11 
Injunction,  petition  for,  against  incorporation  of  village,  p.  20 
Improvement, 

ordinance  to  proceed  after  majority  petition,  p.  225 

ordinance  to  proceed  with,  p.  214 

petition  for  by  majority  owners,  p.  224 

petition  for  by  three-fourths  in  interest,  p.  228 

resolution   declaring  necessity   for,  p.    197 

resolution  for,  after  majority  petition,  p.  225 
Judgment  entry   in    appropriation  proceedings,   p.   97 
Judgment  in  proceedings  to  assess  compensation  for  damages  resulting 

from  improvements,  p.  220 
Jury  in  appropriation  proceedings,  oath  of,  p.  96 
Lease   of   real   estate,   advertisement   for   bids,   p.    107 

ordinance  for,  p.  106 
"Longworth  bond  act,"  forms  under,  p.  291,  294,  295,  296 
Lot  owners  directed  to  fill  and  drain  lots,  resolution  therefor,  p.  66 
Mayor's    proclamation   of  election,   p.    556 
Municipal  bond,  p.  280 


914  INDEX. 

Forms —  Continued. 

Notice,  of  completion  of  plan  for  sewerage,  p.  248 

of  election  on  question  of  issuing  bonds,  p.  295 

of  election  on  incorporation  of  village,  p.  17 

of  estimated  assessments,  p.  261 

of  petition,  by  inhabitants  for  annexation  of  territory,  p.  28 
for  incorporation  of  village,  p.  12 

for  injunction  against  incorporation  of  village,  p.   20 
for  vacation  of  street  by  court,  p.  136 
to  council  to  vacate   street,  p.   132 

of  sale  of  bonds,  p.  285 

to  abate  nuisance,  p.  426 

to  construct  or  repair  sidewalks,  p.  238 

to  owners  of  property  to  be  assessed,  p.  200 
Nuisance,  notice  to  abate,  p.  426 
Oath  of  office,  p.  503 

Oath  to  jury  in  appropriation  proceedings,  p.  96 
Offer  to  confess  judgment  in  appropriation  proceedings,  p.  99 
Officers  and  employes,  ordinance  fixing  salaries  and  bonds,  p.  513 
Official  bond,  p.  506 
Order  of  commissioners  for  annexation  of  territory  upon  petition  of 

inhabitants,    p.    28 
Order  of  county  commissioners  for  organization  of  village,  p.  13 
Ordinance,  accepting  application  for  annexation  upon  petition  of  in- 
habitants, p.  29 

approving  report  of  annexation  commissioners,  p.  37 

authorizing  annexation,  p.  33 

authorizing  construction  of  sewers,  p.  252 

changing  number  of  directors  of  public  service  or  safety,  p.  307 

establishing  board  of  health,  p.  419 

establishing  trustees  of  public  affairs  for  villages,  p.  458 

fixing  salaries  and  bonds  of  municipal  officers,  p.  513 

fixing  salaries  and  bonds  of  village  officers,  p.  445,  n. 

for  sale  of  real  estate  by  municipality,  p.   106 

levying  taxes  for  municipal  purposes,  p.   165 

making  street  railway  grant,  p.  155 

ordering  election  for  surrender  of  corporate  powers,  p.  9 

organizing  fire  department,  p.  388 

organizing  police  department,  p.  387 

providing  for  village  solicitor,  p.  447 

redistricting  city,  p.  306 

regulating  price  of  gas,  p.  658 

requiring  railway  to  be  lighted,  p.  675 

submitting  to  vote  question  of  annexing  another  municipality,  p.  36 

to  appropriate  property,  p.  88 

to  assess  expense  of  lighting  railway,  p.  677 

to  assess    for   street  improvement,   p.    215  - 

to  issue  bonds  after  approval  of  electors,  p.  295 

to  issue  bonds  without  submission  to  popular  vote,  p.  291 

to  lease  or  sell  real  estate  by  municipality,  p.  106 

to  proceed  with  street  improvement,  p.  214 

to  regulate  erection  of  buildings,  p.  474 

to  vacate  street,  p.  132 
Petition,  by  inhabitants  for  annexation  of  territory,  p.  26 

by  municipality  for  annexation  of  territory,  p.  34 

for  detachment  of  unplatted  farm  lands  from  municipal  corpora- 
tion, p.  41 

for  improvement,  by  majority  owners,  p.  224 

for  improvement,  by  three-fourths  in  "interest,  p.  228 

for  incorporation  of  village,  p.  11 

for  injunction  against  incorporation  of  village,  p.  20 

for  regulation  of  erection  of  buildings,  p.  474 

for  vacation  of  street  by  court,  p.  134 


INDEX.  915 

Forms —  Continued. 
Petition — 

to  council  for  surrender  of  corporate  powers,  p.  8 

to   council   to  vacate   streets,   p.    131 

to  township  trustees  for  incorporation  of  village,  p.  15 
Police  department,  ordinance  organizing,  p.  387 
Posting  ordinance,  certificate  of,  p.  323 

Precipe   for   application   to   assess   compensation   for   property    appro* 
priation,  p.  90 

in  application  to  assess  compensation  for  damages  resulting  from 
improvement,  p.  219 
Publication  of  ordinance,   certificate   of,   p.  322 

Public  safety,  department  of,  ordinance  organizing  police  and  fire  de- 
partments, p.   387,  388 

ordinance  changing  number  of  directors  of,  p.  307 
Public  service,  ordinance  changing  number  of  directors  of,  p.  307 
Railway,  ordinance  requiring  lighting,  p.  675 

ordinance  to  assess  expense  of  lighting,  p.  677 
Real  estate,  deed  by  municipal  corporation,  p.  107 

lease  of,  advertisement  for  bids,  p.  107 

lease  of  by  municipality  ordinance  for,  p.  106 

sale  of  by  municipality,  advertisement  for  bids,  p.  107 
ordinance  for,  p.  106 
Redisricting  city,  ordinance  therefor,  p.  306 
Resolution,  accepting  bid  for  contract,  p.  377 

appointing  annexation  commissioners,  p.  37 

appointing  equalizing  board  for  assessments,  p.  261 

appointing  estimating  board,  p.  234 

declaring  intent  tc  appropriate  property,  p.  88 

declaring  necessity  for   construction  of  sewers,  p.  250 

declaring  necessity  for  improvement,  p.  197 

declaring  necessity    of  bond    issue,   p.    294 

directing  lot  owners  to  fill  and  drain  lots,  p.  66 

establishing  street  railway  route,  p.  154 

to  construct  or  repair  sidewalks,  p.  238 

to  improve  alter  majority  petition,  p.  225 

to  improve  after  three-fourths  petition,  p.  229,  n. 

to  issue  bonds,  under  section  2701,  R.  S.,  p.  278 
Report  of  estimating  board,  p.  234 
Return  by  officer  serving  notice  upon  owners  of  property  to  be  assessed, 

p.  201 
Return  of  notice  or  repair  sidewalks,  p.  239 
Sewers,   notice  of  completion  of  plans  for,  p.   248 

ordinance  for  construction  of,  p.  252 

resolution  declaring  necessity  for  construction  of,  p.  250 
Sidewalks,  notice  to  construct  or  repair,  p.  238 

resolution  to   construct  or   repair,   p.   238 

return  of  notice  to  construct  or  repair,  p.  239 
Taxes  for  municipal  purposes,  ordinance  levying,  p.   165 
Trustees  of  public  affairs,  ordinance  establishing,  p.  458 
Vacation  of  street,  by  council,  ordinance  for,  p.  132 

petition  for,  p.  131 

notice  of  petition  for,  p.  136  # 

Verdict  in  appropriation  proceedings,  p.  96 

in  assessment  of  damages  resulting  from  improvement,  p.  219 
Villages,  advertisement  for  bids  for  contracts,  p.  446,  n. 

certificate  of  corporate  powers,  ordinance  ordering  election  for,  p.  9 

certificate  of  election  to  office,  p.  454,  557 

clerk's  certificate  to  secretary  of  state  after  election  on  surrender 
of  corporate  powers,  p.  9 

contracts,  p.  446,  n. 

declaration  and  order  of  township  trustees  after  election  for  in- 
corporation of,  p.  18 


916  INDEX. 

Porms —  Continued. 
Villages — 

incorporation  of,  finding  and  order  of  township  trustees,  p.  16 

petition  for,  p.   11 

petition  to  township  trustees  for,  p.  15 
notice  of  election  for  incorporation,  p.  17 

of  petition  for  incorporation  of,  p.  12 

of  petition  for  injunction  against  incorporation  of,  p.  20 
ordinance   establishing  trustees   of   public   affairs,   p.   458 
ordinance  fixing  salaries  and  bonds  of  officers,  p.  445,  n. 
ordinance  providing  for  solicitor,  p.  447 
ordinance  to  regulate  erection  of  buildings,  p.  474 
organization  of,  order  of  commissioners  for,  p.  13 
petition  for  injunction  against  incorporation  of,  p.  20 
petition  for  regulation  of  erection  of  buildings,  p.  474 
surrender  of  corporate  powers,  petition  to  council  for,  p.  8 


Gambling;    destruction  of  instruments  or  devices  for,  by  municipal  cor- 
poration, p.  45 
Devices;    slot    machines    as,    p.    45,    n.    1 
Power  of  municipality  over,  p.  64 
Power   of  municipality   to   prevent,   p.  44 

Garbage,  contract  does  not  require  auditor's  certificate,  p.  173 
Disposal  plants;  appropriation  of  land  for,  p.  81 
Disposition  of,  power  to  issue  bonds  for,  p.  288 

Gas: 

Appropriation  of  property  for  gas  works,  p.  81 

Bonds  for  gas  works,  p.  288 

Companies  to  furnish  certain  apparatus,  p.  671,  673 

Contract  with  municipality  for  supplying,  p.  665,  669 

Consolidation  of  companies,  p.  662 

Council  may  erect  or  purchase  gas  works,  p.  662 

Council  may  occupy  streets  for  gas  purposes,  p.   660 

Exclusive  monopoly  not  allowed,  p.  661 

Extension  of  pipes  beyond  city,  p.  670 

Forfeiture  of  charter  for  neglect  to  furnish,  p.  660 

temporary  failure  does  not  work,  p.  661 
Inspector,  appointment  of,  p.  661 
Merchantable,  p.  671 
Meter,  must  be  sealed  and  stamped,  p.  671 

inspection  of,  p.  671 

testing  of,  p.  671 
Natural  gas  companies,  in  certain  cities,  laws  applicable  to,  p.  673 
Natural  gas  plants 

enlarging  of,  bonds  for,  p.  666 

laying  pipes  for,  by  municipality,  p.  664 

sale  of  to  persons  outside  of  municipality,  p.  664 

trustees  of  may  sell  to  village,  p.  664 
Occupancy  of  streets,  for  pipes,  p.   660 
Pipes  for,  council  may  provide  for  laying,  p.  665 
Pipes  for,  expense  of  laying,  p.  665 
Price  of,  regulation,  p.  656 

change  of  price,  p.  658 

enforcement  of  regulation,  p.  658,  n. 

reasonableness   of   regulation,   p.   657,   n. 
Power  of  council,  limitation  on,  p.  662,  n.  2,  n.  3 
Power  of  gas  company,  p.  668 

to  supply  electricity,  p.  669 


INDEX. 


917 


Gas  —  Continued. 

Standard  measure  for,  p.  670 
Wells,  tax  levy  for  drilling,  p.  667 
When  company  may  shut  off  gas,  p.  672 

General  powers  of  municipalities,  see  under  Powers  cf  Municipalities. 

Gifts,  power  of  municipalities  to  receive,  p.  43,  62 
To  public  officers,  see  Officers. 

Grade,  Change  Of,  appropriation  of  land  for,  p.  80 

Damages  to  abutting  property,  see  Damages  to  Abutting  Property. 

Expense  of,  how  paid,  p.  230,  773 

Petition  for,  p.  230,  773 

Establishment  of  grade,  p.  230,  773. 

Power  of  municipality  to  establish  grade,  p.  55 

Grade  crossings,  abolishing,  p.  691 

Grades  and  Classes  of  municipalities  under  the  code,  p.  31,  n.  6 

Grounds,  public;  power  of  municipality  to  hold  and  improve,  p.  61 

Gunpowder;  power   of   municipality  to  regulate   transportation,   keeping 
and  sale  of,  p.  51 
Vendor  of,  license  of,  p.  73 


Hack  stands,   power  of  council  to  regulate  and  establish,  p.  79 
Power  of  municipality  to  regulate,  p.  50,  n.  1 

Halls,  Public;      see  Buildings,  Public. 
Appropriation  of  land  for,  p.  81 
Power  of  municipality  over,  p.  59 
Power  to  issue  bonds  for,  p.  288 
Power  to  lease  or  rent,  p.  738 

Hamlets,  p.  821 

Incorporation  of,  p.  10 
Officers  of,  other  than  trustees,  p.  824 
Status  of  under  new  code,  p.  3,  n. 
Taxation  in  hamlets,  p.  826 
Trustees  of  hamlets,  p.  821 

election  of,  p.  821 

general  power  of  hamlets,  p.  823 

limitation  on  powers,  p.  822 

quorum,  p.  821 

term  of,  p.  821 

power  over  streets,  etc.,  p.  822 

vacancies,  p.  821 

Hawkers;  license  of,  p.  73 

Health;  power  of  municipality  to  provide  for,  p.  55 

Health  Board;  see  Board  of  Health. 

Health  officer- 
Annual  conference  of  health  officers,  604a 
Appointment  of,  by  state  board,  p.  417 
Appointment  in  villages,  p.  417 
Board  of  health  to  appoint,  p.  421a 

Heating  and  power  plants,  appropriation  of  land  for,  p.  81 
Power  of  municipality  to  provide,  p.  54 


Highways;  see  Streets. 


918 


INDEX. 


Homes  for  the  friendless,  establishment  of  in  certain  cities,  n    607 
In  Toledo,  p.  608 

Horse  auctions;  license  of,  p.  49,  73 
Hospitals,  p.  365,  626 

Agreement  with  private  corporations  for  interest  in,  p.  629 
Appropriations  of  land  for,  p.  81 
Board  to  manage,  p.  365 
Bonds  for,  power  to  issue,  p.  289 
Cincinnati  hospital,  p.  630,  631 

tax  for,  p.   631 
Contracts,  p.  628 

Council  may  contract  with  private  corporation  for  interest  in,  p.  629 
Employes,  p.  365 
Establish,  power  to,  p.  55 
Expenditures   for,   p.   627 
Founded  by  gift,  p.  493 

management  of,  p.  493 
trustees  of,  p.  493 

appointment  of,  p.  493 
compensation,  p.  497 
contracts,  p.  498 
control  of  hospital,  p.  498 
employment  of  superintendents,  p.  499 
meetings,  p.  497 
report  to  council,   p.   499 
Liability  for   negligence,   p.   626,  n.   2 
Managing  board,  p.   365,   626 

powers,  p.  365,  627 
Medical  college,  relation  to,  p.  632 
Power  of  municipality  to  establish,  p.  55. 
to  maintain  and  regulate,  p.  55 
to  rent,  p.  61 

to  issue  bonds  for,  p.  288 
to  levy  tax  for  free  private  hospital,  p.  492a 

Hospital  trustees;  see  under  Hospitals 

House  movers;  power  of  municipality  to  license,  p.  53 

Houses  Of  ill  fame ;    restraint  of,  p.  47 

Houses  of  refuge,  p.  352 

Appropriation  of  land  for,  p.  81 
Commitment  of  infants  to,  p.  352 

action  against  directors,  p.  361 

appeal  to  board,  p.  361 

apprenticeship  of  infants  in,  p.  357 

confinement  of  infants,  p.   353 

decision  on  appeal,  p.  361 

disposition  of  infants  when  house  of  refuge  filled,  p.  356 

duration  of  commitment  to,  p.  357 

how  far  examinable,  p.  360 

in  lieu  of  jail,  p.  356 

recommendation  of  grand  jury,  p.  355 

record  of  commitment,  p.  356 

what  infants  entitled  to  private  examination  and  trial,  p.  355 
Deficiency  of  expense  of,  p.  360 
Discharge  from,  p.  357 
Employment  of  inmates,  p.  357 
Expenses  of  infants  committed  to,  p.  359 
Habeas  corpus  directed  to,  p.  360 
Infants  over  16  years  of  age,  how  committed,  p.  353 

stubborn  infant,  in,  p.  359 


INDEX.  010 


Houses  of  refuge — Continued. 

Power  of  municipality  to  establish,  p.  59 
Power  to  issue  bonds  for,  p.   288 
Who  may  commit  infants  to,  p.  354 

Huckstering,  p.  60,  n.  3 

Hucksters;  license  of,  p.  73 


111  fame;   houses  of,  restraint  of,  p.  47 

Immoral  literature;  power  to  restrain  distribution  of,  p.  61 

Impeachment    of  heads   of  departments   and  officers,  p.   508;    se^  under 
Officers. 

Imprisonment ;  see  Fines  and  Imprisonment. 

Improvements,    contracts  for,  p.  221 

advertisement  for  bids,  p.  221,  n.  2 
how  let,  p.  221 
Damage  to  abutting  property  by,  see  Damages  to  Abutting  Property. 

Incorporation  of  villages,  p.  9,  10 

Constitutionality  of  procedure,  p.    18,  n.  2 

Division  of  township  funds  when  new  village  created,  p.  22 

Election  of  officers  after  incorporation,  p.  21 

Error  in  proceedings,  does  not  render  void  if  tax  has  been  paid    p.  25 

Petition  for  injunction  against,  p.  19,  20,  21 

Petition  for  to  county  commissioners,  p.    10 

record   of  proceedings,   p.    14 

hearing  by  county  commissioners,  p.   13 

name  of  village,  when  incorporated,  p.   14 

notice  of,  p.  10 

order  for  organization,  p.  13 

order  of  commissioners,  p.  14 

presentation  to  commissioners,  p.  12 

what  to  contain,  p.  10 
Petition  to  township  trustees,  p.  15 

election  upon  question  of  incorporation,  p.  17 

injunction  against  incorporation,   p.    18 

injunction  against  recorder,  p.   19 

petition  for  injunction  against,  p.  17 

procedure  upon  receipt  of  petition,  p.  16 

proceedings  in  injunction,  p.  20 
Platted   lands,   p.    10 

Territory  surrounding  summer  resort,  p.  23 
Unplatted  lands,  p.  15 
When  territory  in  more  than  one  county,  p.  22 

Infirmaries,  p.  365,  633 

Arrangement  with  orphan  asylum,  p.  636 

Care  of  inmates,  p.  367 

County  infirmaries  to  receive  certain  inmates,  p.  609 

Directors  of  county,  in  case  of  merger  of  township  in  municipality,  p. 
7,  n. 

Erection  of,  bonds  for,  p.  288 

Governed  by  hospital  regulations,  p.  366 

Grounds  of  county  or  city,  not  to  be  included  in  village  or  hamlet  in- 
corporation, p.  10 

Legal  settlement,  p.  635 

Location  of,  p.  365 


920  INDEX. 

Infirmaries  — Continued. 
Lucas  county,  p.  635 
Management  of,  p.  365 
Outside  relief,  p.  635  . 
Overseers  of  the  poor,  p.  633 
Partial  relief,  p.  634 
Power  of  municipality  to  maintain  and  regulate,  p.  55 

Injunction,  against  annexation  of  territory  to  municipality,  p.  30 
Against  incorporation  of  villages,  p.   19 

assessments,  p.  183,  n. 

street  railway  grants,  p.  148,  n.,  151,  n.,  344,  n. 
By  solicitor,  p.  342 
By  taxpayer  on  refusal  of  solicitor,  p.  343 

Insane,    meaning  of,  p.  827 

Inspectors :     appointment  of  by  Board  of  Health,  p.  436 
Gas,  appointment  by  council,  p.  661 
Of  buildings,  see  under  Buildings. 
Of  spirits,  oils,  etc.,  p.  59 

Injuries  from  excavations,  P-  775 

Damages  to  be  recovered  by  civil  action,  p.  775 
Depth  of  excavation  allowed,  p.  776 
No  support  to  be  required,  when,  p.  775,  n.  5 
Right  to  grade,  p.  776 

Inspection  of  buildings;  see  Buildings. 

Institutions  in  villages,  p.  456 

Instruments  or  devices  for  gambling;  destruction  of,  under  authority  ol 
municipality,  p.  45 

Interurban  railway  cars;    power  of  municipality  to  regulate  speed  of, 
p.  50 
See  under  Street  Railways. 

Intoxicating  liquors. 

Ballots  at  election,  p.  805 
Beal  local  option  law,  p.  803 

hotels  and  eating  houses,  p.  804 
Beer  is  an  intoxicating  liquor,  p.  49,  n.  2 
Brannock  law,  p.  809 
Contest   of  election,  p.   808 
Definition  of,  p.  806 
Disposition  of  fines,  p.  808 
Distribution  of  Dow  tax,  p.  802 
Election,  p.  804 
Indictments,  p.  807 

Manufacturers  may  sell  to  wholesale  and  retail  dealers,  p.  805a 
Municipal  regulation,   p.   47,   804 
Penalty  for  making  prohibited  sale,  p.  805a 
Petition  for  election,  p.  804 
Rebate  of  Dow  tax,  p.  807 
Regular  druggists,  p.  806 
Regulation  of  by  municipality,  p.  47 
Regulation  of  sale  of,  p.  47,  n.  1 
Residence  district  option  law,  p.  809 
What  constitutes  forty  per  cent,  of  electors,  p.  807 
When  sale  in  municipality  is  unlawful,  p.  805a 


Jails,  power  of  municipality  to  establish,  p.  59 
Prisons,  see  Prisons  and  Station  Houses. 


INDEX.  921 

Judges,    Police,  see  Police  Court. 
Right  of  visitation,  p.  828 

Judicial  department;   see  Police  Court  and  Mayor's  Court. 

Judicial  notice,  of  classification  of  municipalities,  p.  7,  15 
Of  ordinances;  p.  63,  n.  1 

Jurisdiction,    of  police  judge  and  mayor,  see  Police  Court  and  Mayor's 
Court. 

Jury.   Fees  of  jurors  in  police  and  mayor's  court,  p.  587 
In  appropriation  proceedings,  p.  91,  95 
Oath  of,  p.  96 
In  police  court,  p.  574 
Talesman,  in  municipal  court,  p.  587 

Justice  of  the  peace.     Designated  as  police  justice  in  absence  of  mayor, 
when,  p.  586 
Fines  may  be  recovered  before,  p.  590 
In  case  of  merger  of  township  in  municipality,  p.  6 
In  territory  annexed  to  municipality,  p.  26,  n. 


Labor  on  streets;    see  under  Streets. 

Landings,  Public,     appropriation  of  land  for,  p.  81 
Power  of  municipality  to  establish,  etc.,  p.  55 
Power  of  municipality  over,  p.  56,  57 

Law  libraries;   see  under  Libraries. 

Lease  Or  sale  of  property  by   municipality,   see   under   Property. 

Lectures;    kinds  of,  not  subject  to  municipal  license,  p.  49 

Levees;  appropriation  of  land  for,  p.  81 
Power  to  issue  bonds  for,  p.  289 

Lewd  behavior;  restraint  of,  p.  47 

Liability  of  municipality,  cemetery,  negligence  of  employes  in,  p.  68,  n. 

Contract,  on,  p.  372,  n. 

where  no  certificate  of  money  in  treasury,  p.  172 

Explosives,  for  damage  caused  by,  p.  51,  n. 

Levees,  for  overflow  through  inadequate,  p.  84,  n.  9 

Officers'  acts,  for,   p.   329,  n. 

Police  and  fire  departments,  negligence  of  employes  in,  p.  389,  n.  1 

Riots,  etc.,  injuries  caused  by,  p.  45,  n. 

Sewers,  for  failure  to  provide,  p.  245,  n. 

Street  improvements,  for  injuries   caused  by,  see  Damages  to  Abut- 
ting Property. 


Libraries,  p.  491 

Appropriation  of  land  for,  p.  81 

City  council  authorized  to  levy  taxes  to  compensate  private  company 

for  maintaining  free  public,  p.  492 
Custody,  control  and  administration  of,  p.  491 
In  certain  cities  and  villages,  p.  777 

directors,  p.  778 

donations,  p.  779 

who  may  use  libraries,  p.  779 
Law  libraries,  p.   781 
Management  of,  in  cities,  by  board  of  public  service,  p.  351. 

in  villages,  by  trustees  of  public  affairs,  p.  456 
Power  of  municipality  to  establish,  p.   61 
Power  to  issue  bonds  for,  p.  288 
Transfer  of  property  to  school  districts,  p.  780 
Trustees  of,  p.  491 


922  index. 

License  and  regulate;  scope  of  the  words,  p.  50,  n.  1 
Licenses,  p.  63a,  73,  810 

Auctions  and  auctioneers,  p.  49 

Ballgrounds,  race-courses,  etc.,  63a 

Ball  rooms,  p.  63a 

Billiard  rooms,  p.  63a 

Bill  posters,  p.  77,  78 

Bowling  alleys,  p.  63a 

Chattel  mortgage  brokers,  p.  63a 

Constitutionality  of  municipal  licenses,  p.  74,  n.  I 

Dancing  and  riding  academies,  p.  63a 

Definition  of  "  license,"  p.  74,  n.  1 

Delegation  of  power  of  council  concerning,  p.  74,  77  n.,  78 

Discrimination  forbidden,  p.  75  n. 

Exhibitors  of  shows,  p.  73 

Evidence  of  liability  for  license,  p.  63a 

Explosives,  dealers  in,  p.  51,  63a,  813 

Fees  which  may  be  exacted,  p.  63a,  73 

Ferries,  power  to  license,  p.  57 

General  licensing  power  of  council,  p.  63a,  73 

House  movers  and  vault  cleaners,  p.  53 

Itinerant  vendors,  p.  77,  817 

Intelligence  offices,  p.  63a 

Junk  shops,  p.  63a 

Livery  stables,  p.  63a 

Pawnbrokers'  licenses,  p.  63a,  813 

articles  not  to  be  received  from  minor,   intoxicated   or  suspected 
person,  p.  814 

list  of  articles  pawned  to  be  reported  to  mayor,  p.  814 

no  other  business  in  same  building,  p.  814 

"  pawn  broker  "  defined,  p.  813 

penalty,  p.  815 

record  to  be  kept,  p.  813 

to  whom  licenses  may  be  issued,  p.  813 

when  licenses  revocable,  p.  815 
Peddlers'  licenses,  p.  63a,  815 

privileges,  etc.,  in  Cincinnati,  p.  816 

soldiers'  or  sailors'  licenses,  p.  815 
Plumbers'  licenses,  p.  810 

application  and  examination,  p.  810 

disposition  of  money  derived  from  examination,  p.  812 

examiners,  p.  810 

inspector  of  plumbing,  p.  811 

penalties,  p.  812 

power  to  license  plumbers,  p.  53 

rules  governing  plumbing  and  sewerage,  p.  812 
Power  cannot  be  used  to  tax  an  employment,  p.  75,  n. 
Power  of  council  to  provide  for  exhibitions,  etc.,  p.  73 
Power  of  council  to  require,  for  use  of  vehicles  for  hire  on  streets,  p.  7$ 

to  exact  for  theatrical  ticket  brokers,  p.  49 

to  require   for  bill  posters,   sign  painters,   bill   distributers,   card, 
tackers  and  advertising  matter,  p.  78 
Producers  of  farm  products  not  subject  to,  p.  73 
Reasonableness  of,  p.  74,  n.  1 
Recovery  of  illegal  fee,  p.  76,  n. 
Revocation  of,  p.  74,  77,  n. 
Sales  at  auction,  power  to  license,  p.  49 
Sewer  tappers,  power  to  license,  p.  53 

Show  not  be  exhibited  without  permit  from  auditor,  p.  816 
Statement  required  of  itinerant  vendor,  p.  817 
Subjects  of  licensing  power,  p.  74,  n.  1 
Traffic  in  theatrical  tickets,  power  to  license,  p.  49 
Transient  dealers,  p.  77,  78 


INDEX.  923 

Lien  of  assessment. 

For  abating  nuisance,  p.  67 

For  lighting  bridge  or  railway,  p.  677 

For  street  improvements,  p.  263 

Life  estates,  assessment  upon,  p.  260 

Lighting,  municipal  — 

Appropriation  of  property  for,  p.  81 

Bonds  for,  power  to  issue,  p.  288 

Companies,  regulation  of  price  charged  by,  p.  656 

price  not  to  be  reduced  during  period  for  which  fixed,  p.  658 
Contracts,  with  private  company  for  supplying,  p.  665 

do  not  require  auditor's  certificate,  p.  173 
Electric  light  companies;  see  under  Electric  Light. 
Gas  companies;  see  under  Gas. 
Gas  works;  see  under  Gas. 

Lighting  companies  and  municipal  lighting  plants,  p.  656 
Power  to  establish  and  maintain  lighting  plants,  p.  54 
Supervision  of,  p.  351 

Lighting  of  railways  and  bridges,  P-  674 

Assessment  for  expense  of  lighting  railway,  p.  677 

Character  of  ordinance,  p.  675 

Enforcement  of  lien  for,  p.  678 

Notice  of  requirement  to  light,  p.  676 

Ordinance  for,  p.  675 

Procedure  on  failure  to  light,  p.  677 

Requirement  must  be  reasonable,  p.  674,  n.  3 

Limitation  of  actions  — 

For  recovery  of  fines,  penalties  and  forfeitures,  must  be  brought  with- 
in one  year,  p.  590 
For  violation  of  ordinance,  must  be  brought  within  one  year,  p.  590 
Taxpayer  suits  to  enjoin  performance  of  contract  or  payment  of  bonds 

by  municipality,   within  one  year,  p.   341 
To  enforce  lien  of  assessments,  within  two  yeafrs,  p.  270 

new  action  within  one  year,  p.  271 
To  enforce  personal  liability  for  assessments,  p.  265.  n.  2 
To   enjoin   performance   of  contract,    or   payment  of  bonds   by   muni- 
cipality, within  one  year  from  date  of  contract  or  bonds,  p.  341 

Local  assessments;   see  Assessments. 

Longworth  bond  act;   see  Bonds. 

Lots;    power  of  municipality  to  require  filling  of,  p.  65 

Lost  or  destroyed  records;    see  under  Plats. 


Magnetic  telegraph  companies; 

How  right  to  use  public  ground  acquired,  p.  714 
Automatic  package  carrier  companies,  p.  715- 
Electric  light  companies,  p.  715 

See  Electric  Light. 
Probate  court's  jurisdiction  as  to  mode  of  use  of  public  ground,  p.  714 
Subways  and  conduits  for  electric  wires,  etc.,  in  Cincinnati,  p.  718 
Subways  for  telephone  and  telegraph  wires  in  cities,  p.  716 
Telephone  companies,  p.  715 
Validity  of  prior  contracts,  p.  717 
Wires  in  subways,  p.  7 1 6 

Manufacturer,  not  subject  to  license  of  articles  sold  by  him,  p.  73 

Markets;    Appropriation  of  property  for  market  places,  p.  81 

Compensation  of  property  owners  for  market  in  street,  p.  84,  n.  5 
Dedication  of  land  for,  p.  60,  n.  2,  3 


924  INDEX. 

Markets Continued. 

Definition  of,  p.  60,  n.  3 
Market  housea,  p.  721 

Cleveland  market  house  commission,  p.  722 

commission  authorized,  p.  483 

erection  of,  power  to  issue  bonds  for,  p.  288 

no  municipal  liability  for  obstruction  by,  p.  60,  n.  2 
Market  house  companies,  p.  721 

powers  of,  p.  721 
Market  places, 

power  of  municipality  over,  p.  59 

power  of  municipality  to  establish,  p.  59 
Market  spaces  and  stands,  charges  for,  p.  60,  n.  2,  3 
Municipal  liability  as  to,  p.  60,  n.  3 
Nuisance,  as  a,  p.  60,  n.  2 
Power  of  municipality  over,  p.  59 
Superintendent  of,  duties,  p.  550 
Carriages,  registration  of,  p.  437 
Marshal,  duties  of  in  connection  with  other  officers  to  investigate  fires,  p.  553 

In  hamlets,  p.  825 
Mayor;  Annual  budget,  p.  163 

Appeals  from  decision  of,  in  civil  cases,  p.  543 

Bills  of  exceptions,  p.  543 

Council  meetings,  attendance  upon,  p.  332 

Duties  of,  p.  543 

Examination  of  departments,  p.  163 

Examination  of  buildings,  p.  743 

Execution  of  corporation  deed,  p.  543,  n.  2 

Fees  of,  p.  325,  326n,  449.  451,  543 

Jurisdiction  of,  p.  542,  566 

in  damage  cases,  p.  543,  n. 
Power  to  preserve  peace,  p.  542,  586 

to  close  saloons  during  riots,  p.  836 
Powers  of,  p.  542* 

Proclamation  as  to  sale  of  liquor  on  election  day,  p.  587 
Removal  of  by  governor,  p.  511 
Reports  by,  to  council,  p.  163 
Seal  of,  p.  543 

Supervision  of  offices,  p.  163,  508 
Supervision  of  prisons,  p.  587 
Vacancies  in  departments,  filled  by,  p.  614 
Writs  issued  by,  p.  586 
In  cities,  p.  330 

appointment  of  subordinates,  p.  330 

conference  with  heads  of  departments,  p.  332 

doeds  to  be  signed  by,  p.  331,  n.  3 

designation  of  justice  of  the  peace  as  police  judge  in  certain 
instances,  p.  586 

directors  of  other  departments  to  meet  with,  p.  332 

duties  of,  p.  330,  331,  385 

duty  to  attend  council  meetings  on  request,  p.  332 

election,  p.  330 

fees  of,  p.  825,  826,  n. 

personal  liability,  p.  331,  n.  1 

powers  of,  p.  328,  330,  385 

protest  against  excess  of  expenditure,  p.  331 

qualification,  p.  330 

removal  and  suspension  of  subordinates,  p.  330 

salary,  how  fixed,  p.  326 

sign  commissions  and  other  instruments,  p.  331 

supervision  of  offices,  p.  163,  331,  508 

term,  p.  330 

veto  power,  p.  324 


INDEX.  925 

Mayor — Continued. 
In  villages,  p.  446 

annual  report  to  council,  p.  450 

compensation  of,  p.  449 

contracts  executed  by,  p.  446 

designation  of  justice  of  the  peace  as  police  judge  in  certain  in 

stances,  p.  585 
disposition  of  fines,  etc.,  p.  450 
duties  of,  p.  448,  449 
election  of,  p.  448 

power  and  authority  of,  p.  446,  448 
qualifications  of,  p.  448 
resignation,  p.  449,  n. 
supervision  of  conduct  of  officers,  p.  449 
term  of,  p.  448 

to  protest  against  excessive  expenditures,  p.  450 
vacancy  in  office,  p.  448 
vacancy  in  office,  how  filled,  p.  448 

Mayor's  court  — 

In  cities,  p.  580 

certain  city  cases  must  be  tried  by  jury,  p.  581 

certain  state  cases,  accused  may  be  recognized,  etc.,  p.  582 

certain  state  cases  may  be  tried  by  jury,  p.  582 

clerk  not  to  be  concerned  in  case,  p.  581 

contempt,  p.  587 

enforcement  of  fine,  p.  587 

final  jurisdiction  of,  p.  580,  581  . 

how  fees  paid,  p.  587 

jurisdiction  in  felonies,  etc.,  p.  582 

jurisdiction  where  jury  is  waived,  p.  581 

money  in  lieu  of  bail,  p.  582,  n.  1 

rules,  p.  587 
iv  Ullages,  p.  582 

absence  of  accused,  p.  582,  n.  2 

boundary  line  between  villages,  p.  584 

common  pleas  trial  on  recognizance,  p.  583 

contempt,  p.  587 

enforcement  of  fine,  p.  587 

final  jurisdiction  of,  p.  582 

how  fees  paid,  p.  587 

jurisdiction,  in  certain  state  offences,  p.  583 
in  felonies,  p.  584 
limited,  p.  583,  n.  1 

over  right  of  way  of  railroads  adjoining  N>mui«.iy  line,  p.  584 
when  jury  is  waived,  p.  583 

misdemeanor  tried  by  jury,  p.  £83 

process,  p.  585 

recognizance  of  accused,  p.  583 

rules,  p.  587 

violation  of  ordinance  >ied  by  jury    p    383 
Fees  of  mayor,  p.  543 
Jurisdiction  of.  p.  542,  566 
Review  of  proceedings,  p.  542,  543 

Meat  selling,  P-  60,  n.  3 

Measures;  se©  Weights  and  Measures. 

Merger  of  township  iu  municipality,  p.  6 

Merit  system  in  police  and  fire  departments,  p.  404 

Administered  by  Board  of  Public  Safety,  p.  404 

Application  for  examination,  p.  406 

Bribery,  p.  412 

Charges  against  directors,  p.  404 


926 


IKDEX. 


Merit   system —  Continued. 

Classification  of  offices,  p.  406 

Classification  of  service,  p.  391 

Commissioners'  certificate  to  auditor  of  appointments,  p.  414 

Corrupt  use  of  political  authority,  p.  414 

Examination  for  promotion,  p.  409 

Examination  of  applicants,  p.  408 

Investigation  of  enforcement  of  system  by  mayor,  p.  411 

List  of  officers  furnished  mayor,  p.  406 

Method  of  appointment,  p.  410 

Notice  of  appointment  by  mayor,  p.  411 

Offenses  in  connection  with  system,  p.  412 

Penalty  for  violation  of  act  relating  to  system,  effect  of,  p.  415 

Perjury,  p.  415 

Political  assessments,  p.  413,  414 

Procedure  for  compelling  attendance  of  witnesses,  p.  415 

Promotion,  p.  409 

Prosecution  for  violations  of  act.  p.  416 

Publication  of  notice  of  examination  p.  409 

Recommendation  for  appointment,  p.  412 

Refusal  to  obey  subpoena,  p.  415 

Registration  of  persons  eligible  to  appointment,  p.  409 

Removal  for  cause  only,  p.  410a 

Report  of  board  to  mayor,  p.  411 

Right  of  appeal  from  commissioners'  decision,  p.  416 

Rules  and  regulations,  p.  407 

Salaries  of  appointees  employed  in  violation  of  act  not  allowed,  p.  414 

Temporary  appointments,  p.  410 

Who  not  to  be  appointed  or  retained,  p.  407 

Witness  fees,  p.  415 

Midnight  closing  law;  see  Intoxicating  Liquors. 

Militia,  p.  836 

Milk;    fee  for  permit  for  sale  of,  p.  77,  n.  2 
Inspection  of,  p.  55,  n.  2 
See  Board  of  Health. 

Monuments,   to  commemorate  services  of  soldiers,  p.  842 
Power  to  issue  bonds  for,  p.  288 

Morgues  — 

For  Cuyahoga  county,  p.  610 

Power  of  municipality  to  establish,  p.  59 

Municipal  boundaries,    under  new  code,  p.  477 

Municipalities  — 

Classification  of,  see  Classification. 
Part  of  township  for  election  purposes,  p.  7,  n. 
Powers  of;  see  Powers  of  Municipalities. 

Under  new  code;  succeed  to  rights  and  liabilities  of  original  municipal- 
ities, p.   477 

Municipal  liability;    see  Liability  of  Municipality. 

Municipal  libraries  and  trustees;  see  Libraries. 

Municipal  property ;    see  Property. 

Municipal  universities ;    see  Universities. 

Museum  and  park  companies,  p.  837 


INDEX.  927 

N 
Name  — 

Of  municipality,  change  of,  p.  24,  838,  839 

Of  streets,  how  changed,  p.  130 

Of  village  or  hamlet,  after  incorporation,  p.  14 

National  Roads  — 

Agreement  to  keep  in  repair,  p.  127 

Control  of  portions  of,  by  municipality,  p.  126 

Transfer  to  municipality,  p.  127 

Use  of  portion  as  street,  p.  126 

Natural  Gas  Plants;  see  under  Gas. 

New  remedies    provided  by  code  cumulative,  p.  47? 

Nine-pin  alley;    effect  of  ordinance  forbidding,  p.  45,  n.   1 
Power  to  regulate,  p.  45 

Noise    and  disturbance;  power  of  municipality  to  prevent,  p.  44 

Newspaper;  see  Advertisement,  Publication,  Notices. 

Notices;    see  Advertisement,  Publication. 

By  Board  of  Health  to  owner  to  abate  nuisances,  p.  425 

By  mayor  of  appointment,  resignation  and  vacancies  in  police  or  fire 

departments,  p.  411 
How  notices  published,  p.  317,  827 
Of  application  for  street  railway  grant,  p.  149 
Of   application  to  appropriate  property,   p.   90 
Of  application  to  supply  lost  records,  p.   753 
Of  application  to  vacate  or  alter  plat,  p.  749 
Of  bids  by  Board  of  Public  Service,  p.  370 
Of  completion  of  plans  of  platting  commission,  p.  368 
Of   contracts   by  Cincinnati  Water  Works    trustees,  p.   650 
Of  contracts  by  hospital  commissioners,  p.  628 
Of  contracts  by  hospital  trustees,  p.  499 
Of  contracts  by  park  board,  p.  496 

Of  contracts  by  trustees  of  public  affairs  in  villages,  p.  463 
Of  election  for  bond  issue  under  Longworth  bond  act,  p.  293 
Of  election  upon  question,  of  incorporation  of  village,  p.  16 

of  improving  natural  gas  works,  p.  667 
Of  estimated  assessment  to  be  published,  p.  260 
Of  intention  to  appropriate  property,  p.  85 

Of  ordinance  authorizing  construction  of  sewers,  p.  252,  n.  2 
•   Of  ordinance  to  light  railway,  p.  676 
Of  passage  of  resolution  to  improve  streets,  p.  198 

character  of,  p.  199,  n.  2 

effect  of  want  of,  p.  199,  n.  2 

service  of,  p.  199,  n.  2 

to  whom  required,  p.  200,  n.  3,  4,  5 
Of  petition   for   annexation   of   territory  to   municipality,   on   applica- 
tion of  its  citizens,  p.  27 

for  incorporation  of  villages  on  platted  lands,  p.  12 

for  injunction  against  the  incorporation  of  village,  p.  21 

to  vacate,  or  change  name  of,  street,  p.  132,  135 

to  exchange  lots,  p.  110 

to  transfer  funds,  p.  170 
Of  plans  for  sewerage  system,  p.  248 
Of  resolution  to  construct  sewers,  p.  250 
Of  sale  of  bonds,  p.  283 

To  owners  of  property  to  clean  sidewalks,  p.  240a 
To  owners  to  construct  or  repair  sidewalk,  p.  237 


928  INDEX. 

Notices —  Continued. 

To  owners — 

return  of  copy  of  notice,  p.  237 

service  upon  agent  or  owner,  p.  237 

to  non-residents  and  persons  not  found,  p.  239 

To  heads  of  departments  or  officers,  of  charges,  p.  503 

Nuisances,  abatement  of  by  municipality,  p.  46 
Extent  of  regulation  of,  p.  46,  n.  £ 
Hack  stands,  as,  p.  50,  n. 
Health  officer's  duty  with  respect  to,  p.  67 
Houses  of  ill  fame,  as,  p.  47,  n. 
Pest  houses  in  populous  community  is,  p.  84,  n.  8 
Power  of  municipality  over,  p.  65 

to  require  filling  and  draining  of  lots,  p.  65 
validity,  p.  66,  n.  2 
What  are,  p.  46,  n.  2 

Numbering  Of  buildings  J  power  of  municipality  to  regulate,  p.  52 


Oath,  includes  affirmation,  p.  531 

Effect  of  failure  to  take,  p.  507,  531 

Of  county  treasurer,  having  charge  of  city  and  school  funds,  p.  541 

Officers  required  to  take,  p.  502,  531 

Of  officers;  see  under  Officers. 

Necessity  of,  p.  503,  n.  3 

Who  must  take,  p.  502,  n.   1 

Officers  — 

Abolishment  of  former  offices,  p.  328,  n. 
Acceptance  of  bonds,  of,  p.  504,  n.  2 
Accounting  by,  uniform  accounting,  p.  560 
Additional  bond,  p.  507 
Admission  of,  against  city,  p.  329,  n. 

Appointees  pursuant  to  certain  former  acts  continue  to  serve,  p.  484 
Appointee  to  fill  vacancy,  meaning  of  first  proper  election,  p.  535, 
n.  1 

term,  p.  534 
Appointment  of  municipal  officers,  by  whom  made,  p.  330,  383 

when  made,  p.  501 
As  to  particular  officers,  see  their  special  titles. 
Beginning  of  term,  p.  501 
Bonds  of,  p.  501,  504 

additional,  p.  507 

approval  of,  p.  507 

condition  in,  p.  504,  n.  2 

effect  of  failure  to  give,  p.  507,  536 

fixed  by  council,  p.  444,  445,  512 

how  filed,  p.  532 

new  bond,  p.  507 

notice  of  new,  p.  507 

rejection  of  bonds,  p.  504 

sureties'  liability,  p.  508 

surety  on,  when  guaranty  company  must  be,  p.  538 

what  blanks  may  be  filled,  p.  533,  n. 

what  is  sufficient  as  a  condition  of,  p.  533 

when  signed  in  blank,  p.  532 
Combining  offices,  p.  328,  n.  2 
Compensation  of,  how  fixed,  p.  445,  512 

Contracts,  limitation  on  amount  of  bonds  received,  in  public  con< 
tracts,  p.  564 

officers  not  to  be  interested  in,  p.  172,  385,  538 


INDEX.  929 

Officers — Continued. 

Debts  not  to  be  contracted  without  authority,  p.  535 
Be  facto  governments  prior  to  May,  1903,  p.  480,  n. 
Be  facto  officers,  denned,  p.  503,  n. 

acts  valid,  p.  503,  n. 

not  entitled  to  salary,  p.  503,  n. 
Defined,  p.   328,  n.  2 
Delegating  power,  p.  329,  n. 
Deputies  and  clerks,  power  of  deputy,  p.  534 

terms  of,  p.  534 
Devises  and  bequests  to,  p.  536 

Duties  of  with  respect  to  county  auditors'  reports,  p.  537 
Effect  of  failure  to  take  oath  or  give  bond,  p.  507 
Election  of,  p.  501,  556 

abstract  of  votes,  p.  556 

election  proclamation  by  mayor,  p.  556 

places  of  holding  election,  how  designated,  p.  555 

returns  of  election,  p.  556 

tie  vote,  p.  557 

who  are  electors,  p.  556 
Estoppel  from  acts  of,  p.  329,  n. 
Extra  compensation,  p.  513,  n. 
Gifts,  devises  and  bequests  to,  void,  p.  536 
Holding  over,  p.  5,  n.  3 

Hold  until  successors  are  qualified,  p.  479,  533 
How  sureties  affected  by  new  bond,  p.  508 
Illegal  loans  and  deposits  by,  p.  537 
Impeachment  of  head  of  department  or  officer,  p.  508 
In  cities,  p.  328 

appointment  of  subordinates,  p.  330 

bonds  fixed  by  council,  p.  512 

duty  to  attend  council  meetings  on  request,  p.  332 

fees  of,  to  be  turned  into  treasury,  p.  325 

number  and  compensation  fixed  by  council,  p.  512 

removal  and  suspension  of  subordinates,  p.  330 

reports  to  auditor  to  be  made  monthly,  p.  334 

salaries  and  bonds,  how  fixed,  p.  325,  326,  n.  3,  512,  513,  n. 

salaries  not  to  be  increased  or  diminished  during  term,  p.  326 

vacancies,  how  filled,  p.  514 
In  villages,  p.  446 

bonds  of,  approved  by  mayor,  p.  445 
fixed  by  council,  p.  445 
fixed  by  old  council,  p.  444 

compensation  of,  how  fixed,  p.  445,  446,  n.  3,  512,  513,  n. 
fixed  by  old  council,  p.  444 

fees  of,  p.  451 

ordinance  fixing  salaries  and  bonds,  p.  449,  n. 
Interested  in  contract,  p.  172,  176,  n.  3,  382,  538 
Interested  in  public  work,  p.  538 
Municipal  liability  for  officers'  acts,  p.  329,  n. 
New  boards  as  successors  to  old,  p.  328,  n. 
Not  to  be  interested  in  contract,  p.  172,  382,  538 
Oath  of,  p.  501,  502 

character  of,  p.  531 

effect  of  failure  to  take,  p.  507,  531 
Of  cities  reduced  to  villages,  p.  4 
Of  villages  advanced  to  cities,  p.  4 
Ordinance  fixing  salaries  and  bonds  of,  and  organizing  departments, 

p.  512,  513,  n. 
Personal  liability,  p.  329,  n. 
Qualifications  of,  p.  502 


930  INDEX. 

Officers — Continued. 

Recovery  of  overpayment  to,  p.  513,  n. 
Removal  and  suspension  of,  p.  508,  509a,  n.  1 

by  probate  court,  p.  557 
Salary  of,  construction  of  ordinance  fixing,  p.  513,  n. 

de  facto  officers,  p.  513,  n. 

how  fixed,  p.  325,  326,  n.  3,  445,  446,  n.  3,  512,  513,  n. 

not  entitled  to  unless  qualify,  p.  513,  n. 

not  to  be  increased  or  diminished  during  term,  p.  326 

where  none  fixed,  p.  513,  n. 
Seals  of,  p.   532,   535 

Suits  against,  in  their  official  capacity,  p.  329,  n. 
Term  of;  see  under  particular  officers. 

beginning  of,  p.  501 

appointee  to  fill  vacancy,  p.  515,  n. 
Transfer  of  funds  by,  p.  547 
Vacancies,  how  filled,  p.  514 

by  resignation,  p.  515,  n. 

none  where  incumbent  can  hold  over,  p.  515,  n. 

when  occur,  p.  514,  n.  2,  536 

Official  bonds;  see  under  Officers. 

Oiling  of  streets,  p-  772a 

Order;  Power  of  municipality  to  preserve,  p.  44,  64 

Orders  of  procedure— 

For  assessments  by  benefits,  p.  234 

For  municipal  tax  levies  and  appropriations,  p.  160 

For  street  improvements  for  which  assessments  are  levied,  p.  196 

In  appropriations  of  property,  p.  87 

In  assessments,  p.  196 

In  selling  or  leasing  real  property,  p.  105 

In  sewer  improvements,  p.  246 

In  sidewalk  improvements,  p.  236 

Ordinances  and  Resolutions- 
Accepting  dedication  of  streets,  p.  128 

Appropriation  of  property,  p.  85 

Approval  of  mayor  in  cities,  p.  324 

Assessments,  see  Assessments. 

Authentication  of,  p.  325 

Authority  of  municipality  to  pass,  for  the  exercise  of  its  general 
powers,  p.  43 

Authorizing  sale  or  lease  of  property,  p.  104 

Authorizing  contracts,  p.  316,  370 

Certificate  of  publication,  p.  321 

Construction  of,  p.  313,  n. 

Continuing  in  force,  after  advancement  of  village  to  city,  p.  4,  5, 
n.  3 
under  new  code,  p.  480,  480,  n.  2 

Do  not  determine  civil  rights  between  individuals,  p.  312,  n.  2 

Effect  of  non-publication,  p.  323 

Evidence  of,  p.  323 

For  opening  streets,  p.  122 

For  summoning  jury,  etc.,  p.  586 

For  vacating  street,  p.  130 

Franchise  defined,  p.  315,  n.  4 

Granting  franchises,  how  adopted,  p.  312 

How  adopted,  p.  311 

In  case  of  annexation  of  territory,  see  under  Annexation  of  Ter- 
ritory, etc. 

In  case  of  street  improvement,  or  assessment,  see  Assessments. 

In  case  of  sewer  or  sidewalk  improvement,  see  Sewers,  Sidewalks. 

Inconsistent  with  constitution  or  statute,  p.  314,  n.  2 


INDEX.  931 

Ordinances  and  Resolutions Continued. 

Indefiniteness,  p.  314,  n.  2 

Judicial  rotice  of,  p.  63,  n.  1,  324,  n. 

Judicial  review  of,  p.  314,  n.  2 

Licensing,  p.  73,  77,  78 

Majority  necessary  to  pass,  p.  312  % 

May  be  partially  void,  p.  314,  n.  2 

Mayor's  veto,  in  cities,  p.  324 

no  veto  power  in  mayor  in  villages,  p.  445 
Of  a  general  or  permanent  nature;   how  adopted,  p.  318 

suspension  of  rules  for  passage  of,  p.  318 

what  are,  p.  319,  n. 

when  readings  may  be  had,  p.  319,  n. 
Of  villages  or  cities  advanced  or  reduced,  p.  4 

Power  of  municipality  to  make  violation  of  a  misdemeanor,  p.  63 
Practical  construction  by  conduct  of  parties,  p.  313,  n. 
Proof  of,  p.  323 
Publication  of,  p.  317,  320 

by  posting,  p.  322 

in  book  form,  p.  320,  324 

in  general,  p.  321,  n.  2 

length  of,  p.  321,  n.  2 

proof  of,  p.  317,  321 
Punishment  under,  p.  63,  65 
Recording  and  publishing,  p.  317,  320 
Relating  to  cemeteries,  p.  725 
Repeals  by  implication,  p.  320,  n.  3 

Requirement  of  three  readings   mandatory,   p.   318,  n.   1 
Requirements  of  subjects  directory,  p.  320,  n.  2 
Signature  to,  p.  321,  n.  1 

Street  railway  grants  by,  p.  144,  146,  149,  699 
Street  sprinkling,  ordinance  for,  p.  231,  232,  772 
Style  of  ordinances,  p.  325 

Submitting  to  vote  question  of  annexation  of  one  municipality  to 
another;  see  Annexation  of  one  Municipality  to  Another. 
To  assess  expense  of  lighting  railway,  p.  677 
To  issue  bonds,  see  Bonds. 
Validity  in  general,  p.  313,  n. 

What  ordinances  continue  in  force  under  new  code,  p.  480,  480,  n.  2 
When  required,  p.  313,  n. 
When  to  take  effect,  p.  320,  321,  n.  3 
Where  statute  on  same  subject,  p.  314,  n.  2 
Yea  and  nay  vote,  p.  311,  315,  n. 

Organization— Of  cities,  p.  303 

executive  power,  p.  328 

legislative  power,  p.  303 
Of  villages,  p.  444 
Of  village,  on  lands  not  platted;  see  Incorporation  of  Villages. 

on  platted  lands;   see  Incorporation  of  Villages. 

Overflow  from  inadequate  levees,  municipal  liability  for,  p.  84,  n.  9 
Overseers  of  the  poor;  appointment  of,  p.  633 
Owners;  see  Appropriation  of  Property;  Assessments. 

P 

Parks;  Appropriation  of  lands  for,  p.  81 
Founded  by  gift,  p.  493 
commissioners,  p.  494 
trustees  for,  p.  493 

compensation  of  park  trustees,  p.  494 
contracts  by,  p.  496 
control  of,  p.  495 


932  INDEX. 

Parks —  Continued. 
Founded  by  gift — 

duties  and  powers  of,  p.  494 

employment  of  superintendents  by  park  commissioners,  p.  495 

meetings,  p.  494 

powers  of,  p.  495 

report  to  council,  p.  495 

to  have  control  of  improvement  of  natural  water-courses,  p.  496 
In  villages,  p,  456 
Management  of,  in  cities  by  Board  of  Public  Service,  p.  351 

in  villages  by  trustees  of  public  affairs,  p.  456 
Park  companies,  p.  837 

Power  of  municipality  to  hold  and  maintain,  p.  61 
Power  to  issue  bonds  for,  p.  288 
Pauper     brought  into   community  with   attempt  to  charge  with  support, 
p.  610 

Pawnbroker;  see  under  Licenses. 

Peace;    power  of  municipality  to  preserve,  p.  44,  64 

Peddlers;  license  of,  p.  63a,  73,  77 
See  under  License. 

Pension  funds  — 

Fireman's,  see  under  Fire  Department. 
Police,  see  under  Police  Department. 
Sanitary  police,  see  under  Board  of  Health. 

Permit  — 

Burial,  p.  437 

Perpetual  succession;   power  of  municipality  to  have,  p.  43 

Person,    includes  private  corporation,  p.  827 

Personal  injuries;  damages  for,  claims  need  not  be  filed  before  suit,  p. 
273,    n.    1 

Pest  houses  — 

Appropriation  of  land  for,  p.  81 

In  populous  community,  a  nuisance,  p.  84,  n.  8 

Location  of,  p.  366 

Management  of,  in  cities  by  board  of  public  service,  p.  351 

in  villages  by  trustees  of  public  affairs,  p.  456 
Outside  municipality,  p.  366 

Power  of  municipality  to  maintain  and  regulate,  p.  55 
Power  to  establish,  p.  55 
Purchase  of  grounds  for,  p.  366 

Petitions  — 

For  annexation  or  detachment  of  territory,  see  under  Annexation  of 
Territory  to  Municipality  and  Detachment  of  Territory 
From  Municipality. 

For  changre  of  name  of  street,  see  under  Streets. 

For  change  of  name  of  village,  see  under  Name. 

For   incorporation  of  village   or  hamlet,   see  under   Incorporation. 

For  street  improvements,  see  under  Assessments. 

For  sidewalks  improvement,  pee  under  Sidewalk. 

For  sprinkling  streets,  see  under  Streets. 

Pickpockets;    power  of  municipality  over,  p.   64 


index.  933 

Flank  roads;     see  Turnpikes  and  Plank  Roads. 
Platting  commission,  p.  367 

Acceptance  of  plans  by  whom,  p.  369 

Amendment  of  plans,  p.  370 

Copies  of  plans  where  deposited,  p.   369 

Joint   commission   of   adjoining   municipalities,    p.    369 

Notice  of  completion  of  plans,  p.  368 

Objection  to  plans,  p.  368 

Power  and  duties  of,  p.  367-8 

When  constituted,  p.  367 

Plats,    p.  744 

Lost  or  destroyed  records,  p.  753 

application  to  supply  lost  or  destroyed  records,  p    753 

county  commissioners  to  appoint  surveyor,  etc.,  p.  754 

publication  of  notice  of  application  to  supply,  p.  754 

record  of  plat  and  certificate,  p.  754 

record  of  proceedings  by  county  auditor,  p.  754 
Original  plats,  p.  744 

character  of  municipality's  title  to  platted  streets,  p.  747 

common  law  dedication,  p.  745,  n. 

corner  stone  to  be  planted,  p.  745 

defective  plat  not  a  statutory  dedication,  p.  744,  n.  3 

directors    to    lay    out    county    seat    where    no    municipality    is 
organized,  p.  748 

of  subdivisions,  p.  746 

penalty  against  making  record  contrary  to  statute,  p.  747 

penalty    for    disposing    of    lots    before    complying    with    statute, 
p.  748 
'  penalty  for  neglecting  to  plant  corner  stone,  etc.,  p.  748 

penalty  for  selling  lots  contrary  to  statute,  p.  747 

plat  as  a  dedication,  p.  744,  n.  3 

plat  not  acknowledged  and  recorded  not  a   statutory  dedication, 
p.   746,  n. 

proprietor  to  cause  plat  of.  proposed  village  to  be  made,  p.  744 

rights  of  vendee  after  plat  made,  p.  745,  n. 

title   to   platted   streets,   p.   747 

to  be  acknowledged  and  recorded,  p.  745 

what  such  plats  shall  contain,  p.  745 
Revision  of  plats,   p.   751 

compensation    of    auditor,    recorder    and    their    associate    for    re- 
vision, p.  753 

how  expense  of  re-numbering  paid,  p.  753 

mode  of  re-numbering,   etc.,  p.   752 

shall  be  assessed  and  legally  known  by  their  new  numbers.,  p.  752 

who  shall  revise  and  re-number  lots,  p.  751 
Vacating   plats,    p.    748 

application  for,  p.  749 

vacation  and  assessment  of  damages,  p.  750 

changing  of  incorporated  town  or  addition,  p.  750 

clerk's,  fees,  p.  750 

commons  may  be  changed  into  streets,  when  and  how,  p.  749 

proceedings  to  vacate  lots  not  within  a  municipal  corporation,  p. 
751 

when  court  may  alter  or  vacate  plat,  p.  749 

Plumbers,  licenses,  see  under  Licenses. 
Power  of  municipality  to  license,  p.  53 

Poles;     power   of  municipality   to  regulate  erection  of,  p.   52 


934  INDEX. 

Police  court  — 

A  court  of  record,  p.   566 
Acting  police  judge,  p.  575 

as  a  de  facto  officer,  p.  575,  n.  1 

compensation  of,  p.  576 

under  defective  appointment,  p.  575,  n.  1 

validity  of  statute  authorizing,  p.  575,  n.   1 
Ashtabula,   p.   568 

salary  of  judge  aiid  fees,  p.  573 
Averment  necessary  to  information,  p.  572,  n.  1 
Cities  of  the  first  class,  p.  566 

Cities  of  the  first  grade  of  the  second  class,  p.  566,  567 
Cities  of  the  third^ grade  of  the  first  class,  acting  police  judge,  p.  575 
Cities  of  the  fourth  grade  A  of  the  second  class,  p.  568 
Cities  of  the  second   class,  p.  566 
Cities  of  the  second  class  third  grade  C,  p.  568 

salary  of  judge  and  fees,  p.  574 
Cities  of  the  second  grade  of  the  first  class,  p.  579 
Cities  of  the  second  grade  of  the  second  class,  p.  567 

salaries  of  judges,  p.  573 
Cities  of  the  third  grade,  p.  566 
Cities  of  the  third  grade  A,  p.  566 
Cities  of  the  third  grade  C,  p.  566 
Clerk,  p.  576 

compensation  in  cities  of  the  third  grade  C,  second  class,  p.  577 

duties  as  to  papers,  p.  576 

duties  of  as  to  journal,  p.  577 

inability  or  absence  of,  p.  578 

not  to  practice  in  police  court,  p.  57  8 

powers   of,    p.    576 

report  of,  p.  577 

substitute,   p.    578 
Cleveland,  p.  579 

clerk,  p.   580 

compensation  of  police  justices,  p.  580 

election  of  police  justices,  p.  580 

jurisdiction  and  power  of  police  justices,   p.  579 

process,    p.   579 

regulations  governing  courts,  p.   579 

rules,  p.  579 

sessions  of  court,  p.  579 

vacancy  in  office  of  police  justice,   p.  580 
Contempt,  p.  571,  n.  3 
Dayton,   p.   567 

salary  of  judge  and  fees,  p.  573 
Deputy  clerk,  p   577 

compensation,  p.  577 

compensation  in  cities  of  the  first  grade  of  the  first  class,  p.  577 

compensation    in    cities   of   the    second   grade    of    the    first   class, 
p.   577 

compensation  in  cities  of  the  third  grade  of  the  first  class,  p.  578 
Dispatch  of  business,  p.  572 
Fees,  p.  575    * 

Fees  of  juries  and  witnesses,  p.  574 
In  cities,  p.  441,  566 

certain  acts  not  repealed,  p.  442 

clerk,  election  and  term  of,  p.  516 

clerk,  how  chosen,  p.  442 

constitutional  provisions  concerning,   p.  441,  n.   1 

contempt,  p.  587 

enforcement  of  fine,   p.   587 


INDEX.  935 

Police  COUrt — Continued. 
In  cities — 

how  fees  paid,  p.  587 

judge,  election  and  term  of,  p.  516 

judges,  how  chosen,  p.  442 

juries,  how  summoned,  p.  58G 

jurisdiction  of,   p.   442 

of  certain  grades  and  classes,  p.  566 

prosecuting  attorney,  see  Solicitor. 

rules,  p.  587 

summoning  juries,  etc.,  p.  586 

vacancies  in  office  of  judge  and  clerk,  p.  516 

validity  of  special  acts,  p.  442,  n.  2 
Information  must  be  supported  by  oath,  p.  569,  n.  1 
In  hamlets,  p.  585 

disposition  of  fines,  p.  586 

jurisdiction  of,  p.   585 

recognizance  in,  p.  586 
Interpreter,  p.  572 
In  villages,  p.  475 

judge  and  clerk  of,  p.  476 

certain  acts  not  repealed,  p.  476 

jurisdiction  of,  p.  476 

summoning  juries,  etc.;  p.  586 
In  what  name  prosecutions  may  be  carried  on,  p.  571 
Journal,  p.  577 

Judge  may  take  acknowledgments,  etc.,  p.  569 
Juries,  p.   574 

Jurisdiction  in  felonies,  p.  570 
Jurisdiction  of,  p.   566,   569 
Jurisdiction  of   court  and   judges,  p.   566 

Mayor  may  act  as  judge,  in  cities  of  the  third  grade  C,  p.  566 
Mode  of  prosecuting,  etc.,  p.  572 
New  trials  and  motions,  p.  571,  n.  1 
Portsmouth,  salary  of  judge  and  fees,  p.  574 
Powers,  p.  571 
Prosecuting  attorney,  p.  341,  578 

salary  of,  p.  578 

in  cities  of  the  first  grade  of  the  second  class,  p.  578 
Prosecutions  in  the  name  of  corporation,  p.  566,  n.  4 
Recognizances,  p.   575 

Review  on  weight  of  evidence,  p.  571,  n.  2 
Rules  in,  p.  571,  n.  3,  572 
Salary  of  judge,  p.  572 
Special  acts,  p.  566,  566,  n.  5 
Surplus  fees,  p.  578 
Terms  of  court,  p.  572 
Toledo,  acting  police  judge,  p.  575 
Warrants  and  affidavits  in  Zanesville,  p.  570 
Witnesses,  p.   574 
Zanesville,   p.   570 

Police  department  — 

In  general,  p.  53 

no  liability  for  negligence  in,  p.  389,  n.  1 

power  of  municipality  to  organize  and  maintain,  p.  53 

power  to  erect  buildings,  etc.,  for,  p.  53 

pension  fund  or  relief  fund  in,  p.  392,  397 

relief  fund  in,  p.  397 

beneficiaries  of  fund,  p.  400 
board  as  successor  of  preceding  board,  p.  400 
how  chosen,  p.  397 


936  INDEX 

Police  department  —  Continued. 

In  general,  relief  fund  in — 

officers  of,   p.    398 
term  of  members,  p.  398 

custodian  of  fund,  p.  400 

fund,  how  created,  p.  398 

investment  of  fund,  p.  400 

rules  and  regulations  of  board,  p.  397 

trustees  of  fund,  p.  397 
stolen  property,  disposition  of,  by  police,  555 
who  may  arrest,  p.  554 
In  cities,  p.  385 

appointment  in,  see  Merit  System. 

by  board  of  public  safety,  p.  385 
board  of  public  safety  to  manage  and  control,  p.  385 
chief  of,  p.  386 

appointment  of,  p.  386 
classification  of  service  in,  p.  391 
composition  of,  p.  386 

contracts  in  by  directors  of  public  safety,  p.  385,  391 
duties  of,  p.  389 
emergency  policemen,  p.   385 
employing  attorney,  p.  385,  n.  2 
merit  system  in,  see  Merit  System. 
organizing  department,  p.   386,  n.   1 
pension  fund  in,  p.  392,  396 
private   policemen,   p.    386 
relief  fund  in,  p.  392, 
suspension  of  chief,  p.  390 
suspension  of  officers  by  chief,  p.  389 
In  villages,  p.  469 

appointment    of    deputy    marshals,    policemen,    night    watchmen, 

etc.,  by  mayor,  p.  469 
council  may  provide  deputy  marshals,  policemen  and  watchmen, 

and  fix  duties,   etc.,  p.   469 
deputy  marshal,  provided  by  council,  p.  469 

powers  and  duties  of,  p.  469 
marshal — 

disposition  and  record  of  stolen  property,  p  471 

disposition  of  fines,   p.   471 

duties  of,  p.  470 

election,  term,  etc.,  p.  469 

fees  of,  p.  469,  471 

powers  and  duties  of,  p.  469,  471 

report  to  mayor  in  regard  to  stolen  property,  p.  472 

to  suppress  riots,  p.  470 
pension  or  relief  fund  in,  p.  397 
policemen,  p.  469 
removal  of  deputy  marshals,  policemen,  watchmen,  etc.,  by  mayor, 

p.  469 

Police  Judge,    see  Police  Court. 

Police  Justice,  see  Appointment  of.  p.  585,  586 

Police  power  of  municipality,  p.  44 

Police  relief  fund,   see  under  Police  Department 

Pollution   of  water  supply;  power  of  municipality  to  prevent,  p.  54 

Pool  tables,    power  to  regulate,  p.  45 

Poor,    overseers  of,  see  under  Board  of  Health. 

Posting,    see  Publication,  Notices. 


INDEX.  937 

Pounds,  p.  839 

Animals  running  at  large,  p.  839 

may  be  treated  as  estrays,  p.  840 
In  certain  cities,  p.  841 
In  villages,  p.  841 
Power  of  municipality  respecting,  p.  51 

Power  companies,  powers  of,  p.  715 
Power  plants. 

Appropriation  of  land  for,  p.  81 

Power  of  municipality  to  provide,  p.  54 

Powers  of  municipalities,  p.  43 

As  to  power  to  license  various  employments,  see  Licenses. 

As  to  streets,  see  Streets. 

General  powers,  p.  43 

Over  canals  and.  sewers,  p.  57 

Over  drains  and  ditches,  p.  57 

Over  inspection  of  spirits  and  food  products,  p.  59 

Over  police  and  fire  departments,  p.  53 

Over  sewage  disposal  works,  p.  57 

Over  sewers,  p.  57 

Over  streets  and  other  public  places,  p.  55 

Sale  or  lease  of  property  by  municipality,  see  under  Property. 

Special  powers,  p.  80 

Strictly  construed,  p.  44,  n.  6 

To  appropriate  property,  p.   80;   see  Appropriation  of  Property. 

To  borrow  money,  p.   80;    see  Borrowing  Money  and   Bonds. 

To  erect  and  maintain  pest  houses,  hospitals,  and  infirmaries,  p.   55 

houses   of  refuge  and   correction,   p.   59 

jails,  p.  59 

morgues,   p.   59 

prisons  and  farm  schools,  p.  59 

station  houses,  p.  59 

work  houses,  p.  59 
To  establish  and  regulate  hack  stands,  p.  79 
To  establish  and  regulate  sewage  disposal  plants,  p.  61 
To  establish  libraries,  p.  61 
To  establish  market  nouses,  p.  59 
To  establish  public  baths,  p.  61 
To  establish  public  halls  and  buildings,  p.  59 
To  hold  and  improve  public  grounds,  p.  61 
To  license  ferries,  p.  57 

To  levy  and  collect  taxes,  p.  80;  see  Taxation. 
To  levy  and  collect  assessments,  p.  80;  see  Assessments. 
To  license  vault  cleaners  and  sewer  tappers,  p.  53 
To  maintain  and  protect  sinking  fund,  p.  80;  see  Sinking  Fund. 
To  maintain  public  band  concerts,  p.  61 
To  make  violation  of  ordinances  a  misdemeanor^  p.  63 
To  preserve  peace  and  protect  property,  p.  44 
To  prevent  riot,  gambling,  noise,  and  disorderly  conduct,  p.  44 
To    provide    against    contagious,    malignant    and    infectious    disease*^. 

p.  55 
To  provide  for  disposal  of  sewage,  p.  61 
To  provide  for  licensing  bill  posters,  transient  dealers  and  peddlarfi, 

P.  77 
To  provide  for  public  health,  p.  55 

To  provide  waterworks,  lighting,  power  and  heating  plants,  p.  54 
To  regulate,  auctions,  p.  49 

buildings,  fences,  billboards,  signs,  structures,  repair  of  buildings, 
elevators,  stairways,  fire  escapes,  wires,  poles  and  electrical 
appliances,  p.  52 


938  INDEX. 

Powers  of  municipalities— Continued 
To  regulate — 

markets,  p.  59 

sale  of  intoxicating  liquors,  p.  47 

taverns  and  houses  of  public  entertainment,  p.  49 

theatrical  exhibitions  and  shows,  p.  49 

use  of  public  docks  and  landings,  p.  57 

use  of  streets,  p.  80,  see  Streets. 

water  closets  and  privies,  p.  57 
To  rent  hospitals,  p.  61 

To  require  employment  of  street  car  conductors,  p.  63 
To  restrain  distribution  of  immoral  literature,  p.  61 
To  sell  or  lease  property,  p.  80;  see  Property. 
To  take  census,  p.  63 

President  of  council,  p-  332 

As  acting  mayor,  p.  332,  448 

Duties,  p.  332 

Election  of,  p.  332 

Not  a  member  constituting  quorum  of  council,  p.  333,  n.  2 

Qualification,  p.  332 

Succeeded  by  president  pro  tern.,  p.  333. 

Supervision  of  prisons,  etc.,  p.  587 

Term,  p.  332 

Villages,  p.  445,  448 

When  to  make  application  for  division  of  city  into  wards,  p.  305 

Prisons  and  station  houses,  p.  362 

Appropriation  of  land  for,  p.  81 

Disposition  of  prisoners  where  no  work-house,  p.  363 

Management  of,  p.  362,  n.  1 

Power  to  establish,  p.  59 

Provision  for  by  council,  p.  363 

Sustenance  for  prisoners,  p.  362 

Privies;  power  of  municipality  to  regulate,  p.  57 

Property- 
Appropriation,  see  Appropriation  of  Property. 
Donations  of,  may  be  received,  p.  43 

for  library  purposes,  p.  61 
Execution  against  municipal  property,  p.  62,  n.  2 
Includes  real,  personal,  and  mixed  estates  and  interests,  p.  827 
Of  township  merged  in  municipality  vests  in  council,  p.  6 
Of  villages  on  surrender  of  corporate  powers  belongs  to  school  dis- 
trict, p.  8 
Power  to  acquire  by  purchase,  gift,  devise  or  appropriation,  p.  43 

scope  of  power,  p.  44,  n.  5 
Power  to  hold,  manage  and  control,  p.  43 
Power  to  hold  real  estate  for  the  use  of  corporation,  and  to  sell 

or  lease  same,  p.  62 
Power  to  make  rules  and  regulations  to  carry  out  provisions  of  in 
conveyance,  deed  or  will,  in  relation  to  any  gift  or  bequest, 
p.  43 
Railroad  stocks  owned  by  municipality,  who  may  sell,  p.  110 
Sale  or  lease  of  municipal  property,  p.  80,  103 
disposition  of  money  arising  from,  p.  109 
disposition  of  proceeds  of  sale  of  street  refuse,  p.  108 
disposition  of  proceeds  of  sale  of  stock,  p.  Ill 
exchange  of  lots  for  school  purposes,  p.  109 
of  gas  plants,  p.  103,  n.  2 
of  personal  property,  p.  108 
of  refuse,  street  sweepings,  etc.,  p.  108 
of  real  estate,  p.  103,  104 

advertisement  for  bids,  p.  104 


INDEX. 

Property — Continued. 

Sale  or  lease  of  municipal  property — 

concurrence  of  board  having  management  of  property,  p. 
105,  n.  5 

construction  of  bids,  p.  104a,  n.  2 

construction  of  provisions  as  to  advertisement,  p.  105,  n.  8 

contract  for,  p.  104 

definition  of  real  estate  in  this  connection,  p.  104a,  n.  3 

effect  or  conveyance  by  city,  p.  104,  n.  2 

execution  of  conveyance,  p.  105,  n.  6 

forms  for,  see  Forms. 

highest  bidder,  p.  105,  n.  7 

order  of  procedure  for,  p.  105 
of  site  for  passenger  railroad  station,  p.  104 
ordinance  for,  p.  104 

strict  construction  of  statutes  concerning,  p.  104a,  n.  2 

vote  of  council,  p.  105,  n.  4 
of  stocks  in  private  corporations,  p.  Ill 
on  time,  p.  103,  n.  2 

property  acquired  for  specific  purpose,  p.  103,  n.  2 
Taxation  of  municipal  property,  when,  p.  62,  n.  2,  787 

Prosecuting  attornay;  See  Solicitor. 
Salary  of,  p.  578 

Prostitutes;  Power  of  municipality  over,  p.  64 
Prostitution;  houses  of;  Powers  of  board  of  health  over,  p.  47,  n.  1 
Restraint  of,  p.  47 

Publication- 
Mode  of  publishing  ordinances,  p.  317,  320,  322,  324 
Of  notices,  p.  317,  827,  828,  829 
Of  ordinances,  resolutions,  notices,  etc.,  p.  317 
Posting,  p.  322 
See  Notices  and  Ordinances  and  Resolutions. 

Public  buildings,  P-  732 

Appropriation  of  land  for,  p.  81 

Bonds  for,  power  to  issue,  p.  288 

Cleveland  city  hall  commission,  p.  732 

Cleveland  group  plan  for  public  buildings,  p.  737 

Joint  village  and  township,  p.  737a 

Leasing  public  hall,  p.  738 

Power  of  municipality  over,  p.  59 

Rentals  from,  p.  738 

Timepieces  on,  p.  844 

Public  depositary;  of  money,  p.  338 

Public  entertainment;  houses  for,  power  of  municipality  to  regulate,  p.  49 

Public  grounds- 
Council  to  have  control  of,  p.  112 
Power  to  appropriate  property  for,  p.  80 
Power  of  municipality  over,  p.  55 
Power  to  hold  and  improve,  p.  61 

Public  halls- 
Power  to  appropriate  property  for,  p.  81 
Power  to  erect  and  maintain,  p.  59 
Power  to  issue  bonds  for,  p.  288 
Leasing  of,  p.  738 

Public  peace;  Power  of  municipality  as  to,  p.  44,  64 
Public  places;  power  of  municipality  to  establish,  etc.,  p.  55 
see  Streets. 


940  INDEX. 

Public  safety;  directors  of  P-  383 

Appointment  of  directors,  p.  383 

by  governor,  p.  384,  384,  n.  5 
Bonds  of  directors,  p.  384 
Compensation  of  directors,  p.  384 
Clerk  of  board,  p.  411 
Contracts  by,  p.  385,  391 
Duties  and  powers  of,  p.  385 

Employees,  appointment,  suspension  and  removal,  p.  330,  404 
Fire  department,  see  Fire  Department. 

Merit  .system  in  department  of  public  safety,  see  Merit  System. 
Not  to  hold  other  office,  p.  405 
Number  of  directors,  p.  383 
Organization  as  a  board,  p.  384 
Police  department,  see  Police  Department. 
Qualifications  of  directors,  p.  383 
Quorum  of,  p.  384 

Salary  of  members  fixed  by  council,  p.  384 
Terms  of  directors,  p.  383 

Public  service,  directors  of,  P.  350 

Contracts,  p.  370 

advertisement,  length  of,  p.  374,  n.  5 

advertisement,  mandatory,  p.  370,  373a,  n. 

alterations  or  modifications,  p.  371 

what  can  be  made  without  new  bidding,  p.  375,  n.  10 

bids,  p.  370,  380 

bonds,  sufficiency  of,  p.  374,  n.  7 

bonus,  p.  371 

collusion  among  bidders,  p.  371 

combination  among  bidders,  p.  375,  n.  9 

defective  contract  void,  p.  382,  n.  2 

delegation  of  power,  p.  372,  n. 

discretion  in  awarding,  p.  372a,  n.  4 

discretion  to  reject  all  bids,  p.  375,  n.  8 

execution  of,  p.  381a 

filing  of,  p.  381a 

for  both  labor  and  material,  p.  380 

illegal  requirements,  p.  177,  374,  n.  5 

liability  of  municipality  on  contracts,  p.  372,  n.,  381a 

manner  in  which  contracts  shall  be  awarded,  p.  380 

newspapers,  meaning  of,  p.  374,  n.  6 

officers  not  to  be  interested  in,  p.  382 

parties  to  the  contract,  p.  371 

patented  articles  not  to  be  required,  p.  177 

penalty,  p.  371 

power  to  reject  all  bids,  p.  371 

reconsideration  of  rejectment,  p.  375,  n.  8 

regularity  of  bids,  p.  874,  n. 

rescinding  contract,  p.  375,  n.  8 

separate  bids  for  distinct  parts,  p.  381,  n.  1 

specifications  not  to  provide  for  patented  articles  or  processes, 
p.  177 

splitting  up  contract,  p.  372,  n.  3 

sufficiency  of  advertisement,  p.  373a,  n.  5 

when  contract  complete,  p.  375,  n.  8 

water  power,  contract  for,  p.  381a 
Department  of  purchase,  construction  and  repair,  p.  63b 
Duties,  p.  350 
Election,  p.  350 

Employes  in  department,  p.  330,  382 

Houses  of  refuge,  under  control  of,  see  Houses  op  Refuge. 
Hospital,  under  control  of,  see  Hospitals. 
Infirmaries,  under  control  of,  see  Infirmaries. 


INDEX.  941 

Public  service,  directors  of— Continued. 

Municipal  utilities  and  properties  managed  by,  p.  350,  351 

Number  of  members  fixed  by  council,  p.  350 

Platting  commission,  as,  see  Platting  Commission. 

Powers  and  duties,  p.  350,  351 

Number  of  members  fixed  by  council,  p.  350 

Prisons  and  station  houses,  see  Prisons  and  Station  Houses. 

Qualification,  p.  350 

Record  of  proceedings,  p.  382 

Removal  of  employes,  p.  330,  382 

Salary  of  members  fixed  by  council,  p.  326 

Station  houses,  p.  362;  see  Prisons  and  Station  Houses. 

Supervision  of  improvement  and  repair  of  streets,  etc.,  p.  350 

Suspension  of  employes,  p.  330,  382 

Term,  p.  350 

Vote  necessary  for  adopting  of  order  or  resolution,  p.  381a 

Workhouses,  under  control  of,  see  Workhouses. 

a 

Quarantine,    see  under  Board  of  Health. 

Quorum,  see  Council,   Public   Service,  Directors  of,   Public   Safety, 
Directors  of,  and  Hamlets. 

R 

Railroads;    owned  by  municipalities,  p.  695 
Street,  see  Street  Railways. 
Steam,  see  Steam  Railroads. 

Railway  tracks;   appropriation  of  right  of  way  across  by  municipality, 
p.  80 

Reading  rooms;    power  of  municipality  to  establish,  p.  61 

Real  estate;    power  of  municipality  to  acquire  and  hold,  p.  62 
Sale  or  lease  of,  see  under  Property. 

Re-assessment;     see  under  Assessments. 

Recorder,  county;    duties  of,  respecting  annexation  of  territory  to  muni- 
cipality on  application  of  its  inhabitants,  p.  29 
respecting  incorporation  of  villages,  p.  14 
respecting  surrender  of  corporate  powers,   p.   7 

Record  Of  proceedings   in  annexation  of  one  municipality   to  another, 
see  Annexation,  etc. 

Reduction  of  city  to  village,  p.  4 

Reformatories;     appropriation  of  land  for,  p.  81 

See  Charitable  and  Reformatory  Institutions,  Houses  of  Refuge, 
Workhouses. 

Registration 

Of  births,  marriages  and  deaths,  p.  437 

Of  bonds,  p.  286 

Of  electors,  in  case  of  vote  on  bond  issues,  p.  293 

Relief  funds;     see  under  Police  Department. 

Removal  of  officers;    see  under  Officers. 

Repeals  by  new  code,  p.  517 
By  implication,  p.  528,  n. 
When  repeals  go  into  effect,  p.  516 


942  INDEX. 

Reports;  publication  of,  p.  317 

see  under  various  boards  and  officers. 

Resolutions  and  ordinances;  se©  Ordinances  and  Resolutions. 

Review,  Board  of,  see  under  Taxation. 

Revision   Board  of,  see  under  Taxation. 
Of  plats,  see  under  Plats. 

Riot;    power  of  municipality   to   prevent,  p.   44;    see  Police  Depart- 
ment. 

Riparian  rights  of  municipality,  p.  54,  n.  1 

Roads  in  municipal  limits,  see  Streets,  Turnpikes  and  Plank  Roads. 
As  affected  by  annexation,  p.  26,  n. 
Construction  and  repair  of  by  county  commissioners,  p.  755 

cities  in  adjoining  counties  may  aid,  p.  760 
Levy  of  taxes  for,  p.  756,  757,  758 
Municipality  may  assist  in  construction,  p.  760 
Repair  of  in  municipality,  p.  762,  763 
Road  districts,  p.  136 

labor  upon  highways  within,  p.  138 

road  tax,  p.  137 
Road  tax,  p.  756 

Rolling  roads,  municipal  power  to  grant  use  of  streets  for,  p.  56 
Sidewalks  along,  p.  774b 

When  road  is  boundary  of  municipality,  p.  761 
When  road  may  be  extended  to  village,  p.  759 

s 

Sale  of  goods  on  streets ;  power  of  municipality  to  regulate,  p.  50 

Saloons;  see  Intoxicating  Liquors. 
As  nuisances,  p.  48,  n.  2 

Extent  of  power  of  municipality  over,  p.  48,  n.  2 
Power  to  regulate  ale,  beer  and  porter  houses,  p.  47 

Sanitary  board;  see  under  Board  of  Health. 

Sanitary  plant;  see  under  Board  of  Health. 

Sanitary  police;   see  under  Board  of  Health. 
Pension  of,   see  under  Board  of  Health. 

Sanitary  purposes;  power  to  issue  bonds  for,  p.  288 

Saving  of  rights  under  previous  laws,  p.  477 

School  districts  as  affected  by  annexation,  p.  26,  n. 

Seal  of  corporation,  p.  43,  43,  n.  3 
Of  what  it  may  consist,  p.  532 
Official,  see  under  Officers. 

Sealer  of  weights  and  measures,  p.  550 

Comparison  and  sealing  weights  and  measures,  p.  550 

Duties  of,  p.  550 

In  Toledo,  p.  551 

State  sealer  to  furnish  copies  of  standards,  p.  553 

Secretary  Of  State ;       proclamation  of  population  of  municipalities,  p.  4, 
850 
To  receive  transcript  of  proceedings  for  annexation  of  territory  to  mu- 
nicipality on  application  of  its  inhabitants,  p.  29 


INDEX.  943 

Secretary  of  state — Continued. 

To  receive  transcript  of  proceedings  in  the  annexation  of  one  munici- 
pality to  another,  see  Annexation,  etc. 

Sewage ;    power  of  municipality  to  provide  for  disposition  of,  p.  61 
Companies,  p.  768 
Power  of  municipality  to  establish  and  regulate,  p.  61 

Sewage  disposal  plants;     appropriation  of  land  for,  p.  81 
Power  of  municipality  over,  p.  57 

Sewers, 

A  proper  use  of  streets,  p.  58,  n.  3 
Appropriation  of  land  for,  p.  81 
Adoption  of  system,  p.  245,  n.  2 
Amendment  of  plans,  p.  249 
Assessments,  p.  253 

by  districts,  p.  252,  n.  3 

corner  lots,  p.  254,  n. 

defenses  to  assessment,  p.  254,  n. 

instalments  of,  p.  253 

limitations   to  assessments,  p.  201,  254,  n. 

ordinance  for,  p.  253 

property  subject  to,  p.  254,  n. 

uniformity  of,  p.  255,  n. 

what  costs  and  expenses  included,  p.  254,  n. 
City  engineer  to  devise  a  plan  of  sewerage,  p.  244 
Construction  of  without  general  plan  of  sewerage,  p.  255 
Contract,  how  let,  p.  253 

Council  may  borrow  money  for  construction  of,  p.  257 
Defect  in  ordinance,  p.  252,  n.  2 
Defect  in  plans,  p.  245,  n.  2 
Defect  in  proceedings,  p.  254,  n. 
Discretion  of  council  as  to  outlet,  p.  247,  n.  2 
Engineer  to  estimate  costs,  p.  249 
House  connections,  p.  245,  n.  2 
Intersections,  p.  254,  n. 

Joint  sewers  constructed  by  two  or  more  municipalities,  p,  255 
Liability  of  municipality,  p.  245,  n, 

measure  of  damages  for  break,  p.  246,  n. 
Local  drainage,  p.  204,  n. 
Management   of    system    constructed    by   two    or    more    municipal  itifc* 

jointly,  p.   257 
Municipality  may  contract  with  sewer  company,  p.  769 
Necessity  of  estimate  of  cost,  p.  250,  n,  2 
Negligence  in  constructing,  p.  245,  n.  2 
Notice  of  completion  of  plans  to  be  advertised,  p.  248 
Objection  to  plans,  p.  248 

Order  of  procedure  in  sewer  improvement  under  general  plan>  p.  246 
Ordinance  authorizing  construction  of,  p.  251 
Ordinance  for  assessment  of  costs,  p.  253 
Ordinance  to  construct,  time  of  passage,  p.  252,  n.  2 
Plans,  how  prepared,  p.  248 

Pollution  of  watercourse  by  discharge  of  sewers,  p,  246,  n. 
Power  of  municipality  over,  p.  57 
Power  to  issue  bonds  for,  p.  288 

Private;  appropriation  of  by  municipality,  p.  85,  n.  9 
Pumping  stations,  etc.,  p.  257 
Resolution  declaring  necessity,  p.  250 

notice  of  and  necessity  for,  p.  250 
Sewage  farm,  p.  258 
Sewer  districts,  p.  247 
Sewerage  companies,  p.  768 


944  INDEX. 

Sewers  —  Continued. 

Sewerage    companies — 

municipality  may  contract  with,  p.  769 
power  of  municipality  not  limited,  p.   769 
Tappers  and  vault  cleaners,  power  of  municipality  to  license,  p.  53 
Tapping  sewers,  p.   245,  n.   2 
Written  notice  to  owners,  p.   252,   n.   2 

Shooting  and  ball  alleys;  regulation  of  by  municipality,  p.  45 

SllOWS  J  power  of  municipality  to  regulate  public,  p.  49 

Sidewalks,  p.  236 

Assessments  for,  p.  241 

bond  issue  in  anticipation  of,  p.  241 

certificate  of  money  in  treasury  not  necessary  in  case  of,  p.  242, 
n.  2 

corner  lot  doctrine  not  applicable  to,  p.   242,   n.   3 

limitation  on,  p.  240  n. 

ordinance,   how   passed,   p.   242,   n.   4 
Cleaning  of  by  corporation  at  owner's  expense,  p.  240a 
Construction    along   property   of    corporation,    p.    244 
Construction  on  one  side  of  street  only,  p.  273 

ordinance  must  be  reasonable,  p.  273,  n.  2 
Construction  or  repair  of  by  corporation  at  owner's  expense,  p.  239 
Council  to  provide  for  construction  and  repair  of,  p.  236 
Curbing  as  a  part  of,  p.  236,  n.  2 
General  construction,   of   p.   241 

Municipal  liability  for  failure  to  keep  in  repair,  p.  117  n. 
Notice  to  owners  to   clean,  p.   240a 
Notice  to   construct  or   repair,   p.   237 

character  of,  p.  238,  n. 

necessity  for,   p.   238,   n.   3,   240,   n.   2 

publication  of,   p.    239 

return  of,  p.  237 

service  of,  p.  237,  238,  n. 

to  non-residents,  p.  239 
Repair  or  construction  of  at  owner's  expense,  p.  239 
Resolution  ordering,  is  of  permanent  nature,  p.  237,  n.  2 
Sufficiency  of  sidewalk,  p.  238,  n.,  240,  n.  2 
Villages,  special  provision  for  petitions  for  sidewalks,  p.  774 

Signs;  power  of  municipality  to  regulate  erection,  p.  52 

Sinking  fund,  p.  297 

Duty  of  council  as  to  levy  for,  p.  299 

How  funds  should  be  invested,  p.  299 

How  money  to  be  drawn  and  deposited,  p.  300 

Power  to  maintain,  p.  80 

Refunding  bonds,  competitive  bidding  required  for,  p.  301 

issue   and   limit   of,    p.    301 
Recording   of   bonds,    p.    302 
Tax   for    creating,   p.    297 
Trustees  of,  p.  297 

appointment,  p.  297 

as  tax  commissioner,  p.  297 

auditor's   or   clerk's   report   to,   p.    299 

authority  to  issue  refunding  bonds,  p.  301 

compensation  and  bond,   p.   297 

duty  of  council  as  to  levy,  p.  299 

duty  with  respect  to  bonded  indebtedness,  p.  298 

in  cities,  p.  297 

investigations  by,  p.  300 


INDEX.  945 

Sinking  fund —  Continued. 
Trustees  of — 

in  villages,  p.  297 

meeting,  p.  298 

municipal  bonds,  first  offered  to,  p.  282 

organization  of  board,  p.  298 

power    to    make   investigations,    p.    300 

power  to  sell  or  use  securities,  p.  300 

record  of  proceedings,  p.  298 

report  of  council,  p.  299 

required  to  issue  registered  bonds  for  coupon  bonds,  p.  302 

Smoke;  regulation  of  by  municipality,  p.  46 

Soldiers  Monuments,   p.  842 
Soldiers  relief,  p.  639 
Solicitor  in  cities;  p    340 

Action  for  forfeiture,  p.  342 

Action  for  specific  performance,  p.  342 

Action  of  mandamus  by,  p.  342 

Annual  report  to  council,  p.  348 

As  counsel  of  school  board,  p.  549 

As  prosecuting  attorney  of  police  court,  p.  341,  348 

Assistant  may  act  as  prosecuting  attorney  of  police  court,  p.  341 

Duty  to  give  opinions,   p.  549 

Duty  as  to  suits,  p.  548 

Election,  p.  340 

Injunction  provisions  construed,  p.  342 

Injunction  suit  by,  p.  342 

estoppel  as  defense,  p.  345,  n. 

bond  for  preliminary  order  not  necessary,  p.  342,  n. 

must  be  brought  within  one  year  from  uate  of  contract  or  bonds 
enjoined,  p.  341 
Powers  and  duties,  p.  340 
Prosecuting  attorney  of  police  court,  p.  348 

inability  or  absence  of,  p.  349 
Qualification,   p.   340 
Taxpayer  may  be  required  to  give  security  for  costs  p.  343 

may  sue  on  failure  of  solicitor  at  his  request,  p.  343 
Taxpayer's  action;  attorney's  fees,  p.  347 

character  of  action,  p.  344,  n. 

costs,   p.    347 

duty  of  court,  p.  347 

estoppel  by  laches,  p.  345,  n. 

interest  of  taxpayer,  p.  346,   n. 

legislation  not  enjoinable,   p.   344,  n. 

non-resident  taxpayer,  p.  346,  n. 

pleading  and  practice,  p.  346,  n. 

prosecuting  error,  p  346,  n. 

relative  to  street  railway  grants,  p.  344,  n. 

request  to  solicitor,  when  necessary,  p.  347.  n.  3 

statute  construed,  p.  343,  n.  2 

taxpayer's  motive  in  bringing  suit,  p.  346 

when  brought,  p.  345,  n. 
Term,  p.  340 
To  pay  over  moneys  received,  p.  342 

Solicitor  in  villages,  p.  446 

Ordinance   providing  for,   p.    447 
Special    assessments;  see  Assessments. 


946  INDEX. 

Special  election  upon  question  of  incorporation  of  village  on  lands  not 
platted,  p.   17 

Special   powers   of  municipalities,  p.  80 

See  Powers  of  Municipalities. 

Speed   of  interurban  traction  and  street  railway  cars,  power  of  munici- 
pality to  regulate,  p.  50 
Of  steam  railroads,  power  to  regulate,  p.  681 

Spirits   and  food  products;  power  of  municipality  to  regulate,  p.  59 
Sprinkling    streets,  see  under  Streets 

Stairways;     power  of  municipality  to  regulate  construction  of,  p.  52 
Station  houses  and  prisons;    see  Prisons  and  Stationhouses. 
Stands,    cab,  etc.,  power  of  council  to  establish  and  regulate,  p.  79 

Statutes  — 

Acts   relating  to  council,  when  not  repealed  by  code,  p.  327 

Amendatory  and  supplementary  acts,  p.  479,  r 

Amendment  of  act  incorporated,  p.  479,  n. 

Construction  of  the  code,  p.  478,  n.   1 

Definitions,  p.  827 

Effect  of  change  of  phraseology  in  revision,  p.  479,  n. 

Effect  of  codification  and  revision  of,  p.  478,  n.  1 

General  law  not  repealed  by  implication  by  special  act,  unless  neces- 
sary,  p.    529,    n. 

General  law  repealed  special  act  where  the  two  are  irreconcilable,  p. 
529,   n. 

General  revision  as  substitute  repeals  former  acts  by  implication,  p. 
528,    n.    2 

How  words  of  enactment  or  repeal  of,  to  be  construed,  p.  478 

Later  contradictory  statutes  repeal  earlier  by  implication,  p.  528,  n.  2 

Repeal  of  act  incorporated,   effect  of,   p.  479,   n. 

Repeals  by  implications,  p.  479,  n.  528,  n.  2 

Repeals  by  new   code,   p.   517 

When  new  code  takes  effect,  p.   516 

When  repeals  go  into  effect,  p.  516,  n.  1 

Steam  railroads  in  municipal  limits,  p.  679 
Abolishing  grade   crossings,    p.    691 

apportionment  of  cost  between  city  and  company,  p.  693 

circuit  court  to  settle  differences  between  company  and  city,  p.  692 

cost  of  maintenance,  how  borne,  p.  694 

how  necessary  land  acquired,  p.  694 

height  of  viaducts,  p.  694 

plans  and  specifications  for,  p.   692 

street  railway  to  bear  share  of  expense,  p.  695 
Appropriation  of  municipal  property  for,  p.  84,  n.  5 
Appropriation  of  right  of  way  across  for  streets,  p.  80 
Bridges  over  railroad   crossings,   p.   686 
Common  use  of  track  in  street,  p.  690 
Construction  and  maintenance  of  highway  crossings,  p.  687 
Crossing   highway,   p.   684,    687,    690b 
Crossing  other  railroads,  p.  688,  690a 
Crossings  in  Hamilton,  p.  681 
Damages  to  private  property,  p.  682 
Depot,  sale  of  municipal  property  for  site,  p.  104 

companies,  p.  695 
Diversion  of  road  or  stream,  p.  684 
Electricity  as  motive  power,  p.  685 
Height  of  bridges  over  railroad  tracks,  p.  688 

Liability  of  company  for  exceeding  speed  permitted  by  ordinance, 
p.  682       * 


INDEX.  941 

Steam  railroads — Continued. 

Lighting  of  tracks,  p.  674 

council  may  require,  p.  674 

electric  light  cannot  be  required,  p.  674 

expense,  how  assessed,  p.  677 

lien  for,  how  enforced,  p.  678 

notice  of  requirement,  p.  676 

ordinance  for,  p.  674 
character  of,   p.   675 
Limitation  of  actions  for  damages  to  property,  p.  684,  n,  3 
Kailroads   owned  by  municipalities,   p.  696 
Regulation  of  crossings,  p.  679 

of  rate  of  speed,  p.  681 

of  switches,  etc.,  p.  687 
Restoring  highway,  p.   685,  n.  2 
Right  to  use  certain  crossings,  p.  690 
Rights  of  abutting  owner,   p.   684 
Right  to  occupy  road,   street,  etc.,  p.  682 
Stopping  at  certain  stations,  p.  685 
Union  depot  companies,  p.  695 

Unlawful  use  of  highways  in  certain  cities,  p.  690 
Watchmen  at  certain  crossings,  p.  690 

-Steam   whistles;  regulation  of  by  municipality,  p.  46,  47,  n.  4 

Stocks  owned  by  municipality,  sale  of,  p.  110 

Stolen  property,  disposition  of,  555 


Street  commissioner;  p.  455,  550 

Appointment,  p.  455 
Compensation  of,  p.  550 
Duties,  p.  455,  550 
May   be   marshal,    p.    456 
Qualifications  of,  p.  455 
Term,  p.  455 
Vacancies,  p.  455 


Street  improvements;  see    Improvements   and   Assessments. 
Street  railways,  P-  142,  698 

Acceptance  of  grant  a  contract,  p.   147,  n. 
Advertisement  of  application  for  franchise,  p.  149 
Application  for  grant  or  franchise,  p.   146,   146  n.   1,   149 
Appropriation  of  property,  p.  706,  711a 

oath  in  appropriation  proceedings,  p.  707 
Appropriation  of  track  of  other  company,  p.  145,  n.  5,  707,  n.  2 
Bidding  for  franchise,  p.   149 

construction  of  bids,  p.  151,  n.  3 
Change  of  motive  power,  p    143,  n.  2 
Change  of  route,  p.   712 
Cincinnati, 

route  in,  made  valid,  p.  708 
Conductors  on  street  cars,  power  of  municipality  to  require,  p.  63 
Consents  of  abutting  property  owners,  p.   150,  151,  n,  704 

conclusiveness   of  council's   finding,  p.   152,  n.  2 

purchase  of,  p.  153,  n.  4 

remedies  for  lack  of,  p.  153,  n. 

when  necessary,  p.  153,  n.  4 

withdrawal  of,  p.  153,  n.  4,  705 
Consent  of  authority  controlling  public  roads,  p.  707 
Consolidation  of,  p.   701 
Consolidated  company, 

liability  for  tort,  p.  702,  n.  2 

relation  to  constituent  companies,  p.  702,  n.  2 

status  of  constituent  company,  p.  702,  n.  2 


948  INDEX. 

Street  railways — Continued. 

Construction  of  statutes,  p.  146,  n.  6 

of  ordinance,  p.  146,  n.  2 
Council  to  fix  terms  and  conditions  of  construction,  consolidation, 

etc.,  p.  708 
Curative  act,  p.  156 
Definition  of,  p.  142,  n.  2 

Effect  upon  access  to  private  property,  p.  143,  n.  2 
Establishment  of  route,  p.  149 
Extensions,  p.  144,  145,  699 

beyond  city  limits,  p.  145,  n.  2 

in  city  of  the  first  grade  of  the  first  class,  p.  709 

over  other  tracks,  p.  144 

how  length  of  track  determined,  p.  145,  n.  5 
Forms  relating  to  grants;  see  Forms. 
Frogs  at  crossings,  p.  698 

Grade  of  streets  when  street  railroad  is  constructed,  p.  698 
Grant  cannot  be  exclusive,  p.  147,  n. 
Grant  for  longer  than  legal  period,  p.  153,  n.  5 
Grant  must  be  definite,  p.  147,  n. 
Grant  protected  by  federal  constitution,  p.  147,  n. 
Gross  earnings,  p.  147,  n. 

Injunction  against  illegal  grant  or  violation  of  ordinance,  p.  148,  n.  2 
Illegal  conditions  in  grant,  p.  147,  n. 
Inclined  plane  railways,  p.  713 
Interurban  railways  defined,  p.  142,  n.  2 

terminal  depots  and  rights,  p.  713 

use  of  tracks  of  city  company,  p.  702a 
Lease  or  purchase  of,  p.  700 

Lease  or  purchase  of  electric  or  gas  plant,  p.  703 
Lease,  purchase  and  traffic  arrangement,  p.  711 
License  fees,  p.  147,  n. 
Mansfield,  p.  711 

Municipality  cannot  construct,  p.  143a,  n. 
Not  an  additional  burden  upon  the  street,  p.  143,  n. 
No  release  of  grantee  from  obligations  of  grant,  p.  144,  145,  n.  4,  150 
Occupancy  of  track  of  one  railway  by  another,  p.  144 
Ordinance  to  construct,  p.  146,  146,  n.  2 
Pavement  of  street  where  railroads  are  constructed,  p.  699 
Power  to  grant  franchises  cannot  be  delegated,  p.  145,  n.  3 
Power  to  regulate  speed  of  cars,  p.  50 
Publication  of  notice  of  application  when  necessary,  p.  150,  n.  2 

sufficiency  of,  p.  150,  n.  2 
Release  from  obligation  of  grant,  p.  153,  n.  6 
Remedies  in  cases  of  illegal  grants,  p.  148,  n.  2 
Renewal  of  grant,  p.  146,  148a,  n.  3 
Repair  of  crossings,  p.  710 
Resolution  establishing  route,  p.  149 
Screens  for  motormen,  p.  709 

Sprinkling  of  right  of  way  may  be  required  by  council,  p.  712 
Stopping  at  steam  railroad  crossings,  p.  710 
Terminal  depots,  franchises  for,  713 
Terms  and  conditions  of  grant,  p.  146 

Terms  and  conditions  of  construction,  etc.,  how  fixed,  p.  708 
Through  park,  p.  62,  n.  1,  143a,  n. 
Time  limit  of  grant,  p.  150 
Unexpired  franchises,  regranted,  p.  156 
Use  of  tracks  of  another  company,  p.  702a 
Validating  grants,  p.  157,  n.  1 
Vested  rights  not  to  be  impaired,  p.  156 
Watchmen  at  street  crossing,  etc.,  p.  708 
Where  they  may  be  constructed,  p.  142 
Who  may  grant  authority  to  construct,  p.  144 


INDEX, 


949 


Streets,  p-  55,  112,  755 

Abutting  owners'  rights,  p.  115a,  n. 

Additional  burdens  on,  what  uses  impose,  p.  115a,  n. 

Adverse  possession  as  against  municipality,  p.  116,  n. 

Appropriation  of  property  for  opening,  widening,  straightening  and 

changing  grade  of,  p.  80 
Appropriation  of  land  for  obtaining  material  for  improving,  p.  80 
Appropriation  of  right  of  way  over  railway  tracks,  p.  80 
Avenue  companies, 

power  to  condemn  avenue  belonging  to,  within  corporate  lim- 
its, p.  766 
Bridges,  appropriation  of  land  for,  p.  81 

bridge  companies,  p.  762 

constructed  by  counties,  p.  112,  n. 

county  bridges  in  municipalities;  see  Bridges. 

power  of  municipality  to  construct,  p.  55 

power  to  issue  bonds  for  construction  of,  p.  289 
Change  of  name,  p.  130 
Cleaning  streets,  p.  231 
Compensation  for  use  of,  p.  113,  n. 
Condition  in  dedication,  p.  130,  n. 
Council  to  have  control  of,  p.  112 
County  bridges  and  roads  in  municipal  limits,  p.  755 

See  Bridges,  Roads. 
Dedication  of,  p.  127 

acceptance  of  dedication,  p.  129,  n. 

acceptance  of  by  council,  p.  127 

common  law  dedication,  p.  128,  n. 

condition  in,  p.  130,  n. 

dower  right,  p.  130,  n. 

estoppel  in,  p.  129,  n. 

intention  to  dedicate,  p.  128,  n. 

kinds  of  dedication,  p.  128,  n. 

platting  commission's  plan,  acceptance  of,  p.  369 

what  included  in,  p.  130,  n. 
Detachment  of  territory  for  road  purposes,  p.  137 
Exemptions  from  labor  on  public  highway,  p.  137 
Extraordinary  use  of,  p.  115c,  n. 
Grade,  change  of,  damages  for;   see  Damages. 

establishment  of,  p.  55,  193,  230 
Highways  defined,  p.  112,  n.  2 

Improvement  of;  see  Improvements,  Assessments,  Sewers. 
Labor  upon,  p.  136 

accounts  by  supervisors  for  labor,  p.  141 

appearance  with  required  inmplements  for,  etc.,  p.  140 

collection  of  fines  imposed,  p.   141 

commutation  of  labor,  p.  139 

penalty  for  delinquent,  p.  138 

residences  of  citizens,  p.  140 

suits  for  failure  to  perform,  p.  139 

upon  public  highways,  p.  761 
Municipal  liability  regarding,  p.  116,  n. 

contributory  negligence  as  affecting,  p.  120,  n. 

for  failure  to  keep  in  repair,  p.  116,  n. 

for  injury  caused  by  agent,  p.  118,  n. 

for  injury  caused  by  independent  contractor,  p.  119,  n. 

measure  of  damages,  .p  122,  n. 

notice  as  a  condition  precedent  to,  119,  n. 
Name  of  street  changed,  p.  130 

petition  when  necessary,  p.  131,  n.  3 
National  road,  see  National  Roads. 
Nuisances,  in  streets,  p.  772d 
Oiling  of  streets,  p.  772a 
On  state  lands,  p.  755 


950  INDEX. 

Streets  —  Continued. 

Opening  of,  by  ordinance,  p.  122 

power  to  issue  bonds  for,  p.  289 
Petition  for  vacation  or  establishment,  p.  134 
Power  of  council  over  use  of,  p.  114,  n. 
Power  of  municipality  to  establish  grade,  p.  55 
to  regulate  sale  of  goods  on,  p.  50     • 

transaction  of  business  on,  p.  50 
to  issue  bonds  for  improvement  of,  p.  289 
Property  owners'  liability,  p.  121,  n. 
Railroads  in,  see  Steam  Railroads,  Street  Railways. 
Railroad,  use  of,  p.  115,  n. 

Regulation  of  use  of,  power  of  municipality,  p.  50,  80 
fast  driving,  p.  50 
speed  of  street  railway  cars,  p.  50 
transaction  of  business  on,  p.  50 
transportation  of  goods,  p.  50 
vehicles,  p.  50 
Repair  of,  liability  for  failure  to  maintain,  p.  116,  n. 

power  to  issue  bonds  for,  p.  289 
Roads  in  municipal  limits,  p.  763,  see  Roads. 
Road  taxes, 

how  collected  and  applied,  p.   137 
See  Roads. 
Sewerage  companies'  use  of,  p.  768 
Sewers,  a  proper  use  of,  p.  58,  n.  3 
Sidewalks  along  roads  authorized,  p.  774^ 
Sprinkling  streets,  p.  231,  772 

how  and  by  whom  to  be  done,  p.  231,  772 
ordinance  for,  p.  231,  772 
petition  for,   p7  772 

street  railway  companies  to  pay  portion  of  cost,  p.   772 
tax  levy  for,  p.   772 
Title  in  municipality,  p.  113,  n. 

Tollgates  in,  when  municipality  extended  beyond  tollgate,  p.   126,  n. 
1,  764 

See  Tuenpikes  and  Pla.nk  Roads. 
Turnpikes  in  municipal   limits,  p.   112,   n.,   123,   763 
See  Turnpikes  and  Plank  Roads. 
adaptation  of  to  corporation  uses,  p.  125 
assessment  of  cost  of   condemnation,  p.   124,  n.   1 
company's  rights,  p.  123,  n.  1 

right  to  require  city  to  keep  in  repair,  p.  124 
condemnation  of,  for  street  purposes,  p.  123,  n.  1,  124 
contract  with  turnpike  companies,  p.   124,  n.   1 
improvement  of  within  municipality,  p.   124 
right  to  toll,  p.  126 
Vacation  of,  by  council,  p.  130 
by  court,  p.  134 
damages  for,  p.  131,  n.  2 
damage  to  municipality,  p.   135,  n.  1 
effect  of,  p.   133 
injunction  against,  p.  131,  n.  2 
injunction  against  closing  street,  p.  136,  n.  1 
petition  for,  p.  134 
publication  of  application  for,  p.   132 
reverter  on,  p.  131,  n.  2,  133  n.  1 
statutory  method  of,  exclusive,  p.   131,  n.  2 
street  not  to  be  closed  until  damages  paid,  p.  136 
who  may  recover  damages  for,  p.  135,  n.  1 
Viaducts,  bonds  for,  p.  770 

construction  and  repair  of,  p.  770 
Viaducts,  bonds  for,  p.  289,  770 

construction  and  repair  of,  p.  770 


INDEX.  951 

Structures;    power  of  municipality  to  regulate  erection  of,  p.  52 

Subways     for  telephone  and  telegraph  wires,  p.  716 

See  Conduits. 
Suits;     see  Actions. 

Superintendents  Of  markets;   duties  and  compensation  of,  p.  550 

Surrender  of  corporate  powers,  P-  7 
Effect  of,  p.   7 
Election  for,  p.   7 
Old   sections   regarding,   p.   8,   n.    1 
Record  of,   p.   7 

Suspicious   Characters;    power  of  municipality  over,  p.  64 

Swindlers;  power  of  municipality  over,. p.  64 

T 

Taverns;    license  of,  p.  73 

Power  of  municipality  to  regulate,  p.  49 

Taxation,   p.  157 

Annual  budget,  p.  163 

duty  of  council  concerning,  p.  164 
Auditor's  certificate;    contracts  running  beyond  the  year,  p.   176 

condemnation    of   real   estate   does   not   necessitate   auditor's   ceiv 
tificate,  p.  174,  n. 

contract  for  lease  of  electric  light  or  waterworks  plant  does  not 
require  auditor's  certificate,  p.  173 

contracts  for  lighting  and  for  disposing  of  garbage  do  not  require 
auditor's  certificate,  p.  173 

essential  for  validity  of  contract,  p.   172 

exceptions  implied  by  statutes,  p.  175,  n. 

necessary  for  running  expenses  of  corporation,  when,  p.  175,  n. 

when  not  required,  p.  173,   174,  n. 

when  money  deemed  to  be  in  treasury,  p.  177 
Board  of  examiners  may  be  appointed  by  mayor,  p.  163 
Change  of  levy  by  tax  commissioners,  p.  164,  n.  2 

Clerk  in  villages  to  perform  certain  duties  of  city  auditors,  p.  167,  n.  2 
Contingent  fund,  p.  168 

County  auditor's  duty  on  receipt  of  levy,  p.  164 
Distinction  between  tax  and  license  fee,  p.  158,  n. 
Distinction  between  tax  and  local  assessment,  p.  158,  n. 
Duty  of  municipal  treasurer  regarding,  p.  166 
Effect  of  ordinance  levying  excessive  tax,  p.  159,  n. 
Effect  of  ordinance  without  auditor's  certificate,  p.  176,  n. 
Equalization  of  assessments,  p.  799 
Equalization  of  taxes,  p.  789 

annual  city  board  of  equalization,  p.  791 

board  of  review  for  municipal  corporations,  p.  789 

Cincinnati  and  Cleveland,  p.  794 

decennial  city  board,  p.  801 

duties  and  powers  of  boards,  p.  799 

Springfield,  p.  794 
Estimates  by  heads  of  departments,  p.  159 

Estimates  of  officers  to  be  furnished  mayor  and  auditor,  p.  162 
Exemptions  from  taxation,  p.  787 
Fiscal  year,  p.  167 
For  aid  to  art  gallery,  p.  492 

For  fire  protection  purposes,  additional  tax,  p.  786,  787 
For  gas  or  oil  well,  p.  667 
For  natural  gas  works,  p.  157,  n.  2 
For  payment  of  debts,  p.  157,  n.  2 

For  waterworks  and  electric  light  plants  in  villages,  p.  787 
How  taxes  collected,  p.  166 


952  index. 

Taxation —  Continued. 

Levy  and  collection  of  taxes,  p.  80 

Levy  on  annexed  territory,  p.   165,  n.  3 

Levy  to  be  certified  to  county  auditor,  p.  164 

Maximum  of  municipal  taxes,  p.  158 

Mayor's    report   to    council    concerning   departments,    p.    163 

Method  of  collection  where  no  mode  provided,  p.  167,  n.  2 

Money  certified  by  auditor  not  to  be  otherwise  used,  p.  172 

Monthly  statement  of  balances,  p.    171 

Municipal  officer  not  to  be  interested  in  contract,  p.  172 

No  inherent  power  to  tax,  p.  157,  n.  2 

Of  lands  annexed  to  municipality,  p.  26,  n. 

Of  municipal  property,  p.  62,  n.  2 

Order  of  procedure  in  municipal  tax  levies  and  appropriations,  p.  160 

Power  of  council  to  levy  and  collect  taxes,  p.  157 

Public  purpose  necessary,  p.  157,  n.  2 

Purposes  of  municipal,  p.  157 

Reports  by  officers  to  mayor  on  request,  p.  162 

Requirements  of  estimates  mandatory,  p.  160,  n.  2 

Restrictions  as  to  contracts,  appropriations  and  expenditures,  p.  172 

Semi-annual  appropriations,  p.   167 

approval  necessary,  p.  169,  n.  4 

balances,  p.  168 

contingent  fund,  p.  168 

legality  of  purpose,  p.   169,  n.  3 

must  be  detailed,  p.  169,  n.  2 

procedure  in,  p.   161 

transfer  of  balances,  p.   168 

unforeseen  emergency,  p.  169,  n.  6 
Statements  to  be  furnished  by  city  auditor  and  village  clerk,  p.  161 
Surplus  of  special  tax  on  loan  transferred  to  special  fund,  p.  785 
Tax  commission,  p.   178 

appointment  of  members,  p.  178 

approval  of  levy  by  tax  commissioners  of  certain  cities,  p.  784 

clerk  of,  p.  178 

no  compensation  for  members  of,  p.   178 

members  of,  p.  178 

oath  of  members,  p.  178 

organization  of  board,  p.  178 

power  and  duties  of,  p.  179 

record  of  proceedings,  p.  178 

term  of  members,  p.  178 

vacancies  in,  p.   178 
Time  for  certifying  levy  to  county  auditor,  directory,  p-  !$*•  n    2 
Transfer  of  public  funds,  p.  170 

court  proceedings  and  decree  .for,  p.   170 

petition  for,  p.   170 
Unexpended  balances,  transfer  of,  p.  171 
Uniformity  in,  p.  158,  n. 

What  taxes  included  in  maximum  allowed,  p.   158,  n.  2 
When  tax  above  maximum  may  be  levied,  p.  159 

Tax  commission;  see  Taxation. 

Tax   payers ;  actions  by ;  see  under  Solicitor. 

Telegraph;    see  Magnetic  Telegraph  Companies. 

Territory;   annexation  and  detachment  of,  p.  25 

See  Annexation  of  Territory,  Detachment  of  Territory. 

Telephone  companies,  p.  715 

Probate  court's  jurisdiction,  p.  714 
Right  to  use  streets,  p.  714 


INDEX.  953 

Telephone  companies —  Continued, 

Subways  for  wires,   p.   716 
Validity  of  prior  contracts,  p.  717 

Tenpin  alleys;    power  to  regulate,  p.  45 

Terms,   of  officers,  see  under  various  officers. 
Of  police  court,  see  under  Police  Coubt. 

Theatrical  exhibitions;  power  of  municipality  to  regulate,  p.  49 

Thieves;   power  of  municipality  over,  p.  64. 

Thistles;  see  Bbiers  and  Canada  Thistle. 

Time-piece  on  public  buildings,  p.  844 

Tires;  powers  of  council;  to  regulate  width  of,  p.  79 

Tollgates;  see  Turnpikes  and  Plank  Roads. 

Title,    of  new  code,  p.  1,  n.  1 

As  aid  in  construction  of  code,  p.  1,  n.  1 

Township,  boundaries;  change  in  certain  cases,  p.  829 

Division  and  transfer  of  funds  of,  when  village  created,  p.  22 
Merger  in  municipality,  p.  6 

Municipality  is  part  of,  for  election  purposes,  p.  7,  n. 
Officers  in  case  of  merger  of  township  in  municipality,  p.  6 
Trustees,    procedure    on    application    for    incorporation   of   village    on 
lands  not  platted,  p.    16 

Traction  cars;    power  of  municipality  to  regulate  speed  of,  p.  50 

Transient  dealers  — 
License  of,  p.  77,  78 

constitutionality  of  ordinance,  p.  78,  n.  1,  79,  n. 

Transportation;   powers  of  council  to  fix  rate  of,  p.  79 

Treasurer;  advanced  payment  to  by  county  treasurer,  p.  546 
County;  having  charge  of  city  and  school  funds,  p.  541 

See  County  Treasurer. 
In  cities,  p.  337 

accounts  to  be  kept  by,  p.  339 

collection  of  judgments,  etc.,  by,  p.  339 

custodian  of  all  municipal  funds,  p.  340 

deposit  of  moneys  in  banks,  p.  338 

disbursement  of  moneys  by,  p.  340 

election,  p.  337 

may  be  mandamused  to  pay  orders,  p.  339,  n.  3 

powers  and  duties,  p.   337 

profits  from  deposits  of  money,  p.  338  « 

public   depositary,   p.   338 

qualification,  p.  337 

settlement  with   county   treasurer,    p.    339 

school  funds  disbursed  by,   p.  340 

term,  p.  337 

quarterly  account,  p.  340 
In  villages,  p.  455 

duties   of,   p.   455 

election  of,  p.  455 

powers  of,  p.  455 

qualifications  of,  p.  455 

term  of,  p.  455 
Release  of,  from  liability  for  loss  of  funds,  p.  546 
Trees  in  public  places  and  grounds ;   regulation  of  by  municipality,  p.  56 


954  INDEX. 

Trial  of  officers,  see  Officers  and  Merit  System. 
Trustees  of  public  affairs,  P-  457 

Acquisition  of  land  for  water  works  purposes,  p.  459 

Annual  report  of  water  works  receipts  and  expenditures,  p.  462 

Assessment  and  collection  of  water  rents,  p.  460 

Authority  to  supply  contiguous  villages  or  cities  with  water,   p.  466 

Board  created  by  council  in  villages,  p.  457 

By-laws  of  water  works  department,  p.  460 

Construction  and  regulation  of  water  mains,  etc.,  p.  465 

Contract   for   water   with   contiguous   village,   p.   466 

Contractors  in  water  works  department  to  give  bond,  p.  464 

Contracts  for  water  works  department,  p.  462 

Disposition  of  surplus  of  water  rents,  p.  461 

Duties  of  board  of,  p.  457 

Duties  with  respect  to  water  works,  p.  459 

Election  of,  p.  457 

Electric  light  plants,  under  control  of,  p.  459 

Extension  of  water  mains,  etc.,  p.  464 

Investigation  by  council  of  water  works  department,  p.  462 

Limitation,  creating  water  works   debts,  p.  468 

Monthly  reports  to  council  of  water  works  receipts  and  expenditures, 

p.  462 
Municipal  liability  in  water  works  department,  p.  460,  n.   1 
Municipalities  may  contract  for  water,  p.  468 
No  charge  for  water  to  extinguish  fires,  p.  462 
Not  to  be  interested  in  contracts,  p.  464 
Orders  on  water  works  fund  how  signed,  p.  462 
Ordinance  establishing  board,  p.  458 
Organization  of  board,  p.  457 
Pipes  in  highways,  p.  467 
Powers  of  board  of,  p.  457 

Protection  of  attachments  to  water  works  pipes,  p.  463 
Purchase  of  real  estate,  p.  460,  n.  1 
Removal  of  appointees,  p.  460,  n.  2 

Rules  as  to  contracts  in  water  works  department,  p.  463 
Salary   of  members,   p.    459 
Tax  for  payment  of  certain  interest,  p.  467 
Tax  for  water  works  purposes  a  lien,  p.  467 
Term,  etc.,  of  members,  p.  457 

Termination   of  water   works   contract   on   annexation,   p.   466 
Vacancies  in  board,  p.  457 

Water  works  funds  to  be  kept  separate,  p.  462 
Water  works  in  case  of  annexation  of  one  municipal   corporation  to 

another,   p.   466 
Water  works  in  contiguous  villages  or  cities,  p.  465 
Water  works  under  control  of,  p.  459 
When  board  to  be  created,  p.  457 
When  members  may  be  appointed  by  mayor,  p.  4^7 

Trustees  of  sinking  fund;    see  Sinking  Fund. 

Turnpikes  and  plank  roads — 

Adaptation  to  municipal  uses,  p.   125 

Appropriation  of  for  street  purposes,  p.   123,   124 

Condemnation  of  for  street  purposes,   p.    124 

Cost  of  improving  by  municipality,  provision  for,  p,  124 

Power  to  issue  bonds  for,  p.  287,  288 

Repair  of,  by  municipality,  p.  123,  763 

proceedings  to  enforce,  p.  764 

remedy   for   neglect,   p.    124 
Rights   of  turnpike   company  in   municipality,   p.    123,   n.   1 


index.  955 

Turnpikes  and  plank  roads  —  Continued. 

Right  to  toll  not  to  be  impaired,  p.  126 
Tollgate  in  municipal  limits,  p.  126,  126,  n.,  764 
Turnpike  companies,  p.  123,  763 

sale  of  bridge  or  part  o'f  road  to  municipality,  p.  765 


Universities,  p.  485. 

Accounts  of  receipts  and  expenditures  of  endowment   p  489 
Actions  against,  p.  486a,  n.  ' 

Appropriation  of  property  for  grounds,  p.  81 
Authority  of  vested  in  board  of  directors,  p.  485 
Citizens  not  to  be  charged  for  admission  'of  children   p   489 
Directors  of,  appointment  of,  p.  486  ' 

powers  and  duties  of,  p.  486,  488 

when  board  may  confer  degrees,  p.  490 
How  trust  funds  to  be  applied,  p.  487 
May  accept  trust  funds,  p.  486a 
Site  and  ground  for  universities,  p.  490 
Tax  for,  how  levied,  p.  490a 
Trusteeship  to  vest  in  city,  etc.,  p.  487 

Union  depot  companies,  p.  695 
Uniform  accounting  by  officers,  p.  560 

Urinals;     appropriation  of  land  for,  p.  81 


Vacating,    plats;   see  under  Plats. 
Streets,  see  under  Streets. 

Vaccination;    Board  of  Health  may  provide  for,  p.  434 

Vagrants;  power  of  municipality  over,  p.  64 

Validity    of  new  code,  p.  1,  n.  1 

Veto,    by  mayor,  see  Mayor. 

Vehicles;     power  of  municipality  to  regulate  use  of,  p.  50 
Width  of  tires  may  be  regulated,  p.   50 

Viaducts;  appropriation  of  land  for,  p.  81 
Construction  and  repair  of,  p.  770 

bonds  for,  p.  770 
Power  of  municipality  to  establish,  etc.,  p.  55 
Power  to  issue  bonds  for,  p.  289 

Village,  clerk;  see  under  Clerk. 

Fire  department,  see  Fire  Department. 

Incorporation  of,  see  Incorporation  of  Villages. 

Limit  of  population,  p.  1 

List  of  villages  under  secretary  of  state's  proclamation,  p.  5,  851 

Meaning  of  word,  p.  827 

Parks   and  institutions,  p.  456 

Police  department,  see  Police  Department. 

Street  commissioners,  see  Street  Commissioner. 

Surrender  of  corporate  powers,  see  Surrender  of  Corporate  Powers. 


956  INDEX. 

Village  Clerk — Continued. 
Treasurer,  see  Treasurer. 
Trustees  of  public  affairs,  see  Trustees  of  Public  Affairs. 

Visitation,  p.  828 

Voting   on  submitted  questions,  p.  845 
Precincts,  see  under  Council. 

w 

Wards;   council  to  divide  city  into,  p.  305 

Waste   of  water ;  power  of  municipality  to  prevent,  p.  54 

Watch-stuffers ;    power  of  municipality  over,  p.  64 

Water  closets;   appropriation  of  property  for,  p.  81 
Power  to  regulate,  p.  57 
Power  to  establish  and  repair,  p.  57 

Water  companies  — 

May  sell  and  furnish  water  to  municipalities,  p.  669 

May  lay  conductors  in  the  streets,  p.  668 

May  contract  with  municipal  authorities,  p.  669 

Powers  of  company,  p.  668 

Price  charged  may  be  regulated  by  council,  p.  656 

Water  COnrses;  Appropriations  of  land  for,  p.  81 
Definition  of,  p.  58,  n.  2 

Improvement  of;  power  to  issue  bonds  for,  p.  288,  289 
Power  of  municipality  over,  p.  57,  656 
Power  of  municipality  to  keep  open  and  pure,  p.  65 

Water  rents;  nature  of,  p.  54,  n.  1 
Power  to  assess  limited,  p.  54,  n.  1 
Power  to  apply  water  charges,  p.  54 
What  property  assessable  for,  p.  54,  n.  1 

Water  works — 

Appropriation  of  land  for,  p.  81 
Cincinnati — 

new  water  works  act,  p.  646 

water  rents  in,  p.  644 
Construction  and  regulation  of  pipes  in  contiguous  village,  p.  646 
In  cities,  Board  of  Public  Service  to  have  charge  of,  p.  351 
In  villages,  see  Trustees  of  Public  Affairs. 
Power  of  municipality  to  provide,  p.  54 
Power  to  issue  bonds*  for,  p.  288 

Weighing;   power  of  municipality  to  regulate,  p.  52 

Weights  and  measures ;  power  of  municipality  over,  p.  52 
Sealer  of,  see  Sealer  of  Weights  and  Measures. 

Wharves ;  appropriation  of  land  for,  p.  81 

Construction  of,  and  municipal  regulations,  p.  57,  n.  2 

power  to  issue  bonds  for,  p.  288 
Power  of  municipality  over,  p.  55 
Power  of  municipality  to  establish,  etc.,  p.  55 
Regulation  of  by  municipality,  p.  56 

Whistles ;  regulation  of  by  municipality,  p.  46 


1.NDEX.  957 

Wires;  power  of  municipality  to  regulate  stringing  of,  p.  52 
Subways  for,  in  streets,  p.  716,  718 

Wood  J    power  of  municipality  to  regulate  measurement  of,  p.  52 

Workhouses,  p.  363,  61 1 

Agreement  for  use  of,  p.  624 

Appropriation  of  land  for,  p.  81 

Attempt  to  escape,  p.  612 

Board  of  directors  in  case  of  joint  county,  work  under,  p.  613 

Commissioners  of  counties  may  unite  in  erecting,  p.  613 

Commitment,  p.  611 

by  common  pleas  court;  proceedings  under,  p.  625 

by  courts  other  than  common  pleas;  proceedings  under,  p.  625 
County  commissioners'  proceedings  in  erection  and  direction  of  joint 

workhouses,  p.  614 
County  may  unite  with  city  in  erecting,  p.  612 
Cumulative  sentence,  p.  611 
Fees,  p.  612 

Fees  of  officers  of  joint  city  and  county  workhouses,  p.  623 
Habitual  offenders,  p.  611 
Improvement   of  grounds,  etc.,   of  joint   city  and   county   workhouses, 

p.  623 
Inmates  from  other  counties,  p.  620 
May  receive  prisoners  from  other  counties,  p.  612 
Muskingum  county,  joint  city  and  county  workhouse  in,  p.  616,  617, 

618,  619 
Payments  of  fines  and  costs  where  city  or  county  has  no  workhouse, 

p.  622 
Power  of  municipality  to  establish,  p.  59 
Power  to  issue  bonds  for,  p.  288 
Public  service,  directors  of  to  manage,  p.  351 

discharge  of  prisoners  sentenced  to,  p.  364 

infants  to  be  received  when  there  is  no  house  of  refuge,  p.  365 

labor  of  prisoners  sentenced  to,  p.  364 

officers  to  have  police  powers,  p.  364a 

record  of  discharge  of  prisoners,  p.  364 

who  may  be  sentenced  to,  p.  363 
Sentence  where  city  and  county  have  no  workhouse,  p.  621 
Sentence  to,  if  jail  offense,  p.  624 
Warrant  for  commitment  where  city  or  county  has  no  workhouse,  p.  622 

WwthingtGA  2*Wj  p-  t>73,  n.  1 


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